[WSBAPT] Process from dismiss Disso due to death and openingProbate
Andrekita Silva
ak at seattle-silvalaw.com
Mon Apr 13 22:35:21 PDT 2020
Law Office of
F.ANDREKITA SILVA
________________________________________________________________________
.
April 13, 2020
You are correct that a divorce decree terminates or abates by
operation of law upon death. So, temporary orders terminate as well.
The divorce court loses jurisdiction to do anything but enter an order
of dismissal. It’s as if nothing ever happened.
There is a line of cases but I think Marriage of Pratt (1983) and the
2017 unpublished case Marriage of Dillon explain it pretty simply. The
divorce court only has jurisdiction to correct administrative errors,
etc. Based on the info in your post, Opposing party has no basis on
which to object to a dismissal or to seek any relief from the divorce
court.
So, the good news for OP is that if there was life insurance naming OP
as beneficiary, or bank accounts with right of survivorship, and if
there things hadn’t been changed, then OP is still beneficiary. It’s
as if no divorce had ever been filed.
I assume your client had changed his will to name someone other than
OP as PR? Does your client's will leave his/her share of community
property and separate property to someone else? Many people never
get around to changing their will after they file for divorce, even
when I ask "do you need to prepare new will? " most parties say "
yeah, I'll do that later, I don't expect to die right away."
I think you should just tell OP that you will be seeking a dismissal
because divorce abates upon death and that OP should seek a
consultation to see what their rights may or may not be now that
client has died, and to get advice on how to proceed.
andrekita
Law Office of F. Andrekita Silva
1325 Fourth Avenue, Suite 2000
Seattle, Washington 98101
206-224-8288
www.seattle-silvalaw.com
Quoting Josh Grant <jgrant at accima.com>:
> I would just advise OP to get an opinion from an independent
> attorney, who would say “you apply to be PR”. Remember confidences
> continue even after a client dies in some circumstances.
>
> JOSHUA F. GRANT
>
> P. O. Box 619
> Wilbur, WA 99185
> 509 647 5578
>
>
>
> FROM: michael at westseattleattorney.com[1]
> SENT: Monday, April 13, 2020 2:20 PM
> TO: WSBA Probate & Trust Listserv[1]
> SUBJECT: Re: [WSBAPT] Process from dismiss Disso due to death
> and openingProbate
>
>
>
> Hi - yes, but how? While some said file a Motion (I can't
> as I do not have a client) but another said file death cert under
> seal and copy IC Judge - court should administratively dismiss case.
> I believe your right that once Probated is open, spouse could ask
> for a family allowance
>
>
>
>
>
>> -------- Original Message --------
>> Subject: Re: [WSBAPT] Process from dismiss Disso due to death and
>> opening Probate
>> From: "Josh Grant" <jgrant at accima.com[1]>
>> Date: Mon, April 13, 2020 12:55 pm
>> To: "WSBA Probate & Trust Listserv" <wsbapt at lists.wsbarppt.com[1]>
>>
>> I always understood that death ends all
>> divorce cases, OP would get family allowance in estate case?
>>
>> JOSHUA F. GRANT
>>
>> P. O. Box 619
>> Wilbur, WA 99185
>> 509 647 5578
>>
>>
>>
>> FROM: michael at westseattleattorney.com[1]
>> SENT: Monday, April 13, 2020 11:31 AM
>> TO: WSBA Probate & Trust Listserve[1]
>> SUBJECT: [WSBAPT] Process from dismiss Disso due to
>> death and opening Probate
>>
>>
>>
>> Client's death leaves me w/o a client
>> in a divorce case. OP is pro se and will need a family allowance
>> and will not just allow dismissal to take place as it will dismiss
>> Temp Order re maintenance. Do I open probate first and have PR sign
>> Order of Dismissal for Dissolution?
>>
>>
>> Thanks
>> Mike
>>
>>
>>
>>
>> -------------------------
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>
>
> -------------------------
> ***Disclaimer: Please note that RPPT listserv participation is not
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Links:
------
[1]
andrekita
Law Office of F. Andrekita Silva
1325 Fourth Avenue, Suite 2000
Seattle, Washington 98101
206-224-8288
www.seattle-silvalaw.com
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