Death & Divorce
Jul 12, 2023 | Written by: | Share
Have you ever wondered what to do if your spouse passes away during the pendency of your divorce? Unfortunately, this can be quite complex in New Jersey.
Upon the death of a spouse, after the complaint but prior to entry of a Judgment of Divorce, the divorce proceedings are effectively terminated. Thus, any right to equitable distribution under the divorce laws is extinguished. Yet, the court is one of equity, and if a spouse’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 death of the spouse causes compared to the likely result of the divorce.
In the New Jersey Supreme Court case of Carr v. Carr, 120 N.J. 336, 342 (1990), the husband died prior to the entry of the Judgment of Divorce. Therefore, the wife was not entitled to equitable distribution under the statute. However, a surviving spouse cannot be disinherited (net elective share[i]), unless there is a prenuptial agreement or other very specific circumstances. Specifically, in the event of a divorce filing, a surviving spouse is not entitled to an elective-share of the deceased spouse’s estate where: (1) at the time of death the spouses were living separate and apart in separate habitations; or (2) the spouses had ceased to cohabit, either as the result of (a) a judgment of divorce from bed and board; or (b) circumstances that would give rise to a cause of action for divorce or nullity of the marriage.
The Court in Carr explained that a spouse has a right to a marital asset that is acquired due to mutual efforts during the marriage. Marital assets do not lose their basic nature as property acquired through the joint enterprise of both spouses during the marriage merely because one spouse dies while a divorce is still pending. Thus, the surviving spouse is left to pursue relief by way of a constructive trust under quasi-contractual law, which may be established by the Court as a vehicle by which equity may be accomplished.
The courts allow a surviving spouse to complete equitable distribution by amending the divorce complaint to include a claim against the decedent’s estate.[ii] Thus, the surviving spouse is left to pursue relief by way of a constructive trust. It is important to keep in mind that there may be significant differences when a matter proceeds against an estate, such as with pensions or other retirement plans governed by Federal Laws, real estate, etc.
What about when a spouse dies after your divorce?
In the recent, unpublished NJ Appellate Division case of Couri, the court examined this issue and found, “Therefore, we vacate the order and remand to the family court for a plenary hearing involving the proper parties.” When the former spouse died during the post-divorce proceedings, the attorney/family failed to notify the court and file the necessary substitution (the spouse for the estate).
Did the deceased spouse modify their beneficiary designations after the divorce? This is an extremely important question/consideration. What about their Will?
If your spouse dies during the pendency of your divorce or subsequent, leaving unfinished issues, it is absolutely critical to contact an experienced family law attorney to assist in understanding how to handle these unique circumstances. We also offer an extremely experienced estate law practice to assist, as these areas of law often overlap. Please contact us to schedule your consultation.
[i] N.J.S.A. 3B:8-1
[ii] "If a party dies and the claim is not thereby extinguished, the court shall on motion order substitution of the proper parties." See R.4:34-1(b). In other words, when a spouse dies during a divorce, the probate court passes the decedent's assets according to their will or intestate succession. The representative of the husband's estate cannot step into the decedent's shoes in the divorce (New Jersey Court Rule 4:34-1(b)).
Diana N. Fredericks, Esq., devotes her practice solely to family law matters. She is a Certified Matrimonial Law Attorney and was named to the NJ Super Lawyers Rising Stars list in the practice of family law by Thomson Reuters from 2015 through 2022, to the NJ Super Lawyers list in 2023, and to the New Leaders of the Bar list by the New Jersey Law Journal in 2015. Contact Ms. Fredericks for a consultation at 908-735-5161 or via email.
If you have a suggestion for a future blog topic, please feel free to submit it via the Contact Us form.
Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.