My Client Died During the Dissolution Action, What Do I Do Now?

• Jurisdiction: California,United States
• Author: Nancie Yomtov
• Publication year: 2019
• Citation: Vol. 41 No. 1

My Client Died During the Dissolution Action, What Do I Do Now?

Nancie Yomtov

Nancie Yomtov is an attorney practicing in Santa Clara County and certified by the State Bar of California Board of Legal Specialization; she has been practicing for 39 years. She earned her M.A. in Psychology from the City University of New York in 1972 and her Juris Doctorate from the University of Santa Clara in 1980. She is a member of the State Bar of California, has been a board trustee of the Santa Clara County Bar Association for two terms, the is a past chair for the Family Law Executive Committee of the Santa Clara County Bar, as well as a past chair of the County Bar's Family Law Education Committee. She has acted as a Judge Pro Tem for both family law settlement conferences and Small Claims court. She has been published in the periodical of the Association of Family Law Specialists as well as the State Bar Family News Journal.

How can I proceed, we were in the middle of things, and now my client (or opposing party) is gone. Well, the answer is: it depends.

Generally speaking, if a party dies during the pendency of the action, the action is abated; it is over, as there is no marriage to dissolve. But this is not always the case.

When is the marriage dissolved?

In an action for dissolution, Family Code section 310 states that the marriage is dissolved under the following circumstances:

1. The death of one of the parties.
2. A judgment of dissolution of marriage.
3. A judgment of nullity of marriage.

Under any ofthe above circumstances, the dissolution of marriage resulting from the death of a spouse is "final, irrevocable, nonmodifiable, and nonappealable."¹

Note, the above does not pertain to actions for nullity. The cause of action for nullity survives to allow the court to determine if there had, in fact, been a marriage.²

When the party dies, the dissolution action is over, but is it?

A. What Actions Are Not Abated at Death of Party:

There are several instances where the death of the party does not abate the action except as to status:

a. After a bifurcation of the status of marriage the court reserves jurisdiction to determine the unresolved issues.³

b. If a party dies after the entry of judgment, the court reserves jurisdiction over that court's orders. Any obligation imposed shall be enforceable against any asset, including the proceeds thereof, against which these obligations would have been enforceable prior to the person's death.⁴

"Although the death of one of the spouses in such a case abates the divorce action, the abatement relates to the status of the parties and not to the property rights theretofore adjudicated."⁵

"The death of one of the spouses abates a cause of action for dissolution, but does not deprive the court of its retained jurisdiction to determine collateral property rights if the court has previously rendered judgment dissolving the marriage."⁶

As an example, a bank account is awarded to one spouse, but the other depletes it: the family court can make orders to make the spouse whole. If a party is ordered to make the other a beneficiary of a life insurance policy, and the person names another, or fails to pay the premiums, then the other party can be made whole from other assets.

B. Can the Court Enter Judgment After a Party Dies?

The court can enter judgment after the death of the party if:

a. The proposed marital settlement agreement was signed by the parties, and the judgment was submitted, and the party dies before it is signed by the court- the court has the power to sign the proposed judgment, which, after all, the parties had intended that the agreement would be the judgment of the court.⁷

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b. If the court heard the case and made orders which had not as yet been reduced to a writing, the court has jurisdiction to sign the order after the death of the party.⁸

C. Nunc pro Tunc:

Can the court make orders nunc pro tunc? Yes, a court can enter the judgment nunc pro tunc regarding all issues, including status, submitted for decision prior to death of party.⁹

D. What Obligations Survive The Death Of A Party? 1. Child Support Orders:

a. If at the death of a parent who is responsible for the support of a child dies, and the child would be eligible for state benefits, the support obligation would be chargeable to the deceased parent's estate.¹⁰

b. Had the deceased parent not provided a sufficient sum to meet the parent's obligations, then the surviving parent could make a claim against the estate of...