Get on the path to results today. (877) 245-3911


What Happens in Divorce if My Spouse Dies or Gets Incapacitated

Posted by Alessandro G. Assanti | Feb 09, 2021

 If a spouse becomes incapacitated during a divorce proceeding, a guardian will most likely be appointed by the Court to govern his or her person and property. If the incapacitated individual had signed a valid Power of Attorney prior to incapacitation, this may not be sufficient for a divorce action. The application for a guardianship can be made by a close relative or friend, and if none are available, the court can appoint a neutral person (most typically an attorney) to act on the incapacitated person's behalf. 

 If a spouse dies after a complaint for divorce is filed, the process becomes more complicated. Upon the death of a spouse after the complaint, but prior to entry of a Judgment of divorce, the divorce proceedings are effectively terminated.  Yet, the court is one of equity, and if a spouse's s death would lead to an unfair result (sometimes referred to as “unjust enrichment”), the Court will see the divorce through to its conclusion using its authority to fashion a remedy that is fair to the surviving spouse. When determining what course of action to take, there needs to be an analysis of what effect the deaths of the spouse has compared to what a likely result of the divorce would be. 


About the Author

Alessandro G. Assanti

Managing Attorney and Trial Counsel

Contact Us Today

A.G. Assanti & Associates, PC is committed to answering your questions about Personal Injury, Business Litigation, and Family Law issues in California. We offer a Free Consultation and we'll gladly discuss your case with you at your convenience. Contact us today to schedule an appointment.

A.G. Assanti & Associates, PC
Mon: 08:00am - 05:00pm
Tue: 08:00am - 05:00pm
Wed: 08:00am - 05:00pm
Thu: 08:00am - 05:00pm
Fri: 08:00am - 05:00pm