'Til Death or Irreconcilable Differences Do Us Part: Comparison of Support Obligations at Death and Divorce

Author(s)

Laura Hamister

Details

Faculty editor: Paul Horton
Publication: Contemporary Legal Issues
Volume: 22
Issue:
Start Page: 29
Month: December
Year: 2015
Type: Article

Abstract

California law requires that spouses in going-concern marriages support each other. Spousal-support entitlements continue, albeit in altered form, after dissolution of a California marriage. California marriages are dissolved by death of a spouse or by judgment of divorce (or nullity). When a marriage is dissolved by the death of one spouse, the surviving spouse’s support entitlement is limited to the period pending resolution of the deceased spouse’s estate. When a marriage is dissolved by divorce, the court has discretion to award temporary support during the pendency of proceedings—as on death—and also to award permanent support from one ex-spouse to the other, often for an indefinite period, after the final judgment of divorce is entered. These are general default rules, applied by California’s courts in the absence of effective agreement to the contrary between the spouses.
In this essay I am not interested in entitlements by agreement. My project is to compare and contrast the default spousal-support entitlements— “alimony” during and after divorce, “spousal allowance” on death —and to explore possible reasons for the disparity in treatment.