We represented the children of a deceased father who had owned real property as his sole and separate property.  The property remained his separate property at the time of his death. The separate real property was acquired by the father approximately eighteen years before his marriage to his second spouse.  The father never transferred this property to his second spouse, nor did he ever transmute this property to community property. 

The deceased father left a will providing for his children and his surviving second spouse.  The second spouse commended a probate of the will and sought a family allowance.  The second spouse also claimed she was entitled to make a claim against the estate for the value of the community property expenditures to reduce the principal balance of the mortgage on the deceased spouse's separate property.  This claim is known as a Moore-Marsden claim.  Marriage of Moore, (1980) 28 Cal.3d 366, Marriage of Marsden, (1982) 130 Cal.App.3d 426.

We concluded that the recovery of community property expenditures on a spouse's separate real property is available only if a dissolution action is not resolved before one spouse dies.  There must be a pending dissolution action for a spouse to make such a claim.  In re Marriage of Bono, (2002) 103 Cal.App.4^th 1409

In our case we argued that, at the time of the spouse's death, the parties were married and neither a legal separation had been filed, nor dissolution action was pending. 

Our position was that a surviving spouse cannot divorce post mortem.  This is because a deceased spouse cannot participate in such a divorce proceeding, and there are a multitude of dissolution issues that cannot be resolved. To begin with, had there been a pending divorce, the surviving spouse would not be entitled to make a claim for a family allowance because of a separation or an interlocutory decree. Grand v. Superior Court, (1963) 214 Cal.App.2d 15.

After spouses are divorced their respective wills, and nonprobate transfers in such instruments as trusts, joint tenancies, retirement plans, employee benefit plans, and pension plans will fail as prescribed under California Probate Code Section 6122.

In our case, the deceased spouse's bequest to the surviving spouse could not fail as provided under Probate Code Section 6122. 

If a surviving spouse can successfully open the door to claims of recovery of community property expenditures, the estate will likewise be entitled to make a claim against the surving spouse's separate property. 

Our position is that the cases decided in California to date were not willing to open the door to this type of post mortem dissolution. 

Web Resources

FindLaw
Thomson West
U.S. Courts
Westlaw
United States Chamber of Commerce
FirstGov
Library of Congress
White House
Internal Revenue Service
Yahoo!Legal Blog Directory