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Orange County Divorce Blog

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Post Death Support Payments

In Kircher v Kircher the appellate court addresses the circumstances in which an obligation of spousal support survives the death of the payor after all the joint tenancy property of the payor is transferred to his second wife.

The parties in Kircher divorced in 1976 and entered into a Marital Settlement Agreement (“MSA”). The MSA stated that spousal support would not extend past the death of either spouse. In 1987, the parties modified their MSA. The modification did not retain the provision that spousal support terminated “upon the death of either party.” However, the modification did state that termination would occur on the death of the supported spouse.

The payor spouse remarried and deeded his property from sole ownership to joint ownership adding his second wife as a joint tenant. Upon the death of the payor, the second wife sold the property and discontinued paying spousal support. The first spouse brought this action.

The trial court found by clear and convincing evidence, that the payor waived the automatic termination of spousal support on death and that the proceeds from the sale of joint property can be used to pay the spousal support obligation.

The second wife appealed the trial court’s decision. The Second Appellate Court held that California Family Code Section 4337 requires a written agreement which clearly establishes that spousal support endures beyond the death of the payor. Although there are no particular phrases or words that evidence that commitment, silence does not suffice, and the term “nonmodifiable” does not extend the obligation past the death of the obligor.

The appellate court found that, however, the MSA modification in did not need to specifically state that support would continue after the payor’s death, because case law does not require such precision. Due to the fact that the MSA’s modification deleted the requirement to end support after the death of the payor and specifically stated that it would not extend beyond the death of the payee, the parties obviously intended that the obligation extend beyond the death of the payor.

The appellate court also held that the payor’s new wife was personally liable for the obligation because upon the death or the payor, she received part of his community or separate property. It was irrelevant to the court that the property was held in joint tenancy and passed to the new wife by right of survivorship rather than through court administration. The appellate court held that when the payor passed away and his second wife received his property, she was now liable for the spousal support obligation.

If you need legal advice and are looking for a family law lawyer in Orange County to address a spousal support issue or a divorce matter such as legal separation, annulment, custody, child support, or property division, please consider Treviño Law in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not address other factors which may play a significant role in a particular dissolution. Circumstances in your divorce may alter the results in your dissolution.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.