On March 22, 2018 the founder of Toys ‘R’ Us, Charles Lazarus, passed away immediately following the news that the cash strapped chain would be closing its doors. The news of Lazarus’s death reignited rumors of the debated divorce declaration his second wife made prior to succumbing to cancer. The claim drew attention to how difficult one spouse passing away can be once divorce becomes a topic of discussion.

The high number of divorces that occur annually in the United States is well recorded, but there are a few recent studies that document how many people pass away while they are in the middle of a divorce. Divorce and the passing of a loved one are two of the most stressful events that can occur in someone’s adult life. Having the two events occur simultaneously is something that no one is ever prepared for, and knowing if divorce proceedings affect probate can help you if you find yourself placed in that difficult situation.

The Scenario

Imagine that you and your spouse have decided that your marriage is no longer working. After contacting an attorney, separating, or filing for divorce, suddenly one spouse passes away. Now what? Unfortunately, this is a scenario that has played out for more than one person. As a higher number of older adults pursue divorce than in the past, it is possible that the scenario will grow more common. A contested divorce between a long married couple can be time consuming and stressful, increasing the possibility of one party passing away before the divorce is finalized.

How is Probate Affected?

How probate is affected ultimately depends upon how far your divorce has gone and what steps both spouses have already made to protect their best interests. Immediately after filing for divorce, a person should always update insurance policy beneficiaries, cancel joint accounts, and update any existing estate plans. Unfortunately, many adults fail to do those things or do not have an estate plan to update. At that point, probate court may step in and distribute assets based on California law favoring the person who was legally your spouse at the time of your passing.

Can Your Heirs Fight Back?

If you pass away before finalizing your divorce and your estranged spouse is in line to inherit your assets, your children or other potential heirs may attempt to regain what they feel is rightfully theirs. While it is possible to challenge laws, remember that your heirs will be fighting an uphill battle. People have spent years fighting decisions made by a probate court with little to no success.

Contact an Attorney

If you are someone who is considering getting a divorce, remember to consult a probate attorney along with a divorce lawyer. A probate attorney can help you create a new estate plan or work with you to update an existing one. With the guidance of a qualified legal team, you can prevent your assets from falling into the hands of your spouse should you pass away before your divorce is finalized. The team at MMZ Law understands how difficult estate planning is and we are here to relieve some of your burden. Contact our Claremont, California office today to schedule an initial consultation so that we can begin providing you with the help you need.





341 W. 1st St. Suite 100
Claremont, CA 91711

MARIVEL M. ZIALCITA is the founder of MMZ LAW, A Professional Corporation, where she practices in the areas of Elder Law – Medi-Cal Planning Asset Protection, Trust & Estate, Special Needs, Conservatorship, Trust Administration, & Probate. Ms. Zialcita is a frequent speaker on trust and estate matters and holds memberships in the State Bar of California, Trust and Estate Section, The San Bernardino County Bar Association, Wealth Counsel and Elder Counsel. She currently assists in the pro bono legal services program at the James L. Brulte Senior Center in Rancho Cucamonga, California. She is based in Claremont but assists clients throughout Southern California.

This information is educational information only and not legal advice.