Woodbridge Divorce Lawyer: What If My Spouse Dies during our Divorce Proceeding?

When one spouse dies after a divorce complaint has been filed, but before a final judgment of divorce is entered, neither the probate code nor the divorce laws about the equitable distribution of marital assets will control in relation to what, if anything, a surviving spouse will receive from the deceased spouse’s estate.  That said, there is some guidance.

New Jersey’s equitable distribution statute typically does not authorize the distribution of marital assets except upon the divorce of the parties. Carr v. Carr, 120 N.J. 336, 342 (1990). In Carr, the parties’ marriage was terminated by the husband’s death, not by the parties’ divorce, and therefore the wife was not entitled equitable distribution under the statute.  In New Jersey, in the event that one spouse dies and the surviving spouse is disinherited from his will, the surviving spouse does not have a right to equitable distribution but instead could have “a right to take an elective share of one-third of the augmented estate…” of the deceased spouse. Id. at 344 citing N.J.S.A. 3B:8-1.  However, in the event of a divorce filing, a surviving spouse is not entitled to an elective-share of the deceased spouses’ 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 as man and wife, 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 in New Jersey. Carr, Supra, 120 N.J. at 344. So, in Carr, since the surviving spouse was not able to obtain a divorce from her deceased husband she could not seek the distribution of any marital assets under the divorce laws; nor could she claim an elective share of her deceased husband’s estate because he died when their divorce was pending. Id. Basically, the spouse in Carr was caught between two statues.

But there is some hope.  Ultimately, in Carr, the surviving spouse was entitled to seek “equitable relief”, specifically, what is called a constructive trust that restricted the deceased husband’s estate from distributing the property contained in the estate until it could be determined what portion of any of the deceased husband’s assets should be distributed to the surviving spouse. Id.

What does all of the above mean?  It is important for any spouse who is in the midst of a lengthy divorce proceeding to revoke and create a new will. If one spouse leaves his or her entire estate to the other spouse in the event of death, even if the will was executed before a divorce complaint was filed, that will continues to be enforceable. In other words, in most cases, it will be necessary for any spouse to change his or her will upon the filing of a divorce complaint to avoid the possibility that the estranged spouse will receive an inordinate share of the deceased spouse’s estate, a result that may have no longer been intended by the deceased spouse upon filing the divorce complaint.

If you or someone you know has a question about his or her rights as they relate to divorce and modifying his or her will, then please call the skilled divorce lawyers in New Jersey at Lyons & Associates at (908) 575-9777 or contact us online. The attorneys at Lyons & Associates have substantial experience in such matters.