Q: My mom passed away and was in process of divorce and division of assets/retirement accounts/proceeds from sale of home

A: Dear Fontana, CA:

This is a tricky one, for which you should seek legal counsel with a qualified attorney. But, here is some basic information to help you along.

When a spouse dies and their is no will or trust, the property distributes though intestacy. Normally, the surviving spouse gets all of the community property and 1/2 or 1/3 of the separate property. (If there is more than on child, or issue of a predeceased child, the surviving spouse gets a 1/3, otherwise the survivor gets 1/2). The part the surviving spouse does not get goes to the decedent's heirs at law. This starts with children and their decedents, only if there are no children or other descendants do we start looking at other family members.

Now when a decedent is in the middle of a divorce, it gets a little bit more complicated. The filing of a divorce effects any testamentary instruments (wills and trusts). It may also effect intestacy. What it hinges on is whether or not the court entered a decree terminating the marriage.

Divorces normally have two judgements that are issued. First the court will issue an order terminating the marriage (generally called an interlocutory order), and then later the court enters the property settlement (or order if it goes to trial) as part of the final orders.

If the court entered the order terminating the marriage before the spouse died, then the survivor is no longer a surviving spouse. In this case, the decedent's one-half of community property and their separate property goes to the intestate heirs of the decedent, not the ex-spouse.

However, retirement benefits, life insurance, and other such beneficiary designated items may have different rules that apply. Sometimes they become part of the Decedent's estate, sometimes the contract designates who is the payee if there is no designated beneficiary, and sometime Federal law answers the question.

To further complicate matters a lot of companies will not provide details or even talk to you unless you obtain a court order or are the court appointed representative. (There are some exceptions when the entire estate is worth less than $150,000.00.)

And, this is only the tip of the iceberg of issues where a couple in the middle of a divorce suffers the death of one of the parties. (Or, best not to try this on your own.)

So again, I recommend that you speak with an attorney right away. (Particularly as you probably do not want the ex appointed as administrator, or serving as trustee if there was a trust.) If you do not know where to find an attorney, you should contact your local county bar association. California county bar associations run legal referral programs that put you in touch with an attorney for a consultation for a very low, or no, fee. (In my home county, $35.00 gets you a 30 minute consultation.)

Good luck.