MCLE SELF-STUDY ARTICLE UNTIL DEATH DO US PART: PART II: AREAS OF DIVERGENCE BETWEEN MARITAL PROPERTY DIVISION AT DEATH AND DIVORCE

Written by James P. Lamping, Esq.^*

I. INTRODUCTION

This article is a sequel to Until Death Do Us Part: Marital Property Characterization in the Postmortem Setting (2015) 24 California Trusts and Estates Quarterly No. 4. The previous article pointed out that many of the rules governing the division of marital property characterization in divorce proceedings also apply in the postmortem setting. This article, by contrast, will focus on the differences between these two contexts.

The previous article included a discussion of the similarities between the rules governing property characterization in both settings. Prior to the publication of the previous article, the topic of tracing commingled community and separate property following death was often met with reactions ranging from skepticism to derision. However, the notion has subsequently gained wider acceptance. As litigation of these issues becomes more prevalent, the need to complete the analysis with a discussion of the distinctions between death and divorce became apparent.