What Happens if a Spouse is Incapacitated or Dies during a Divorce?

Death and disease are tragic no matter the circumstances. But what happens when a spouse gets seriously ill or passes away during the divorce process? This experience is not uncommon and worth exploring to offer insight to anyone dealing with the illness or death of an ex-spouse.

A Change in Jurisdiction is Possible

Technically, when a spouse dies before divorce is final, the courts do not proceed with the divorce. Under the law, a marriage terminates when a partner dies, making their survivor a widow or widower.

When it comes to the division of marital assets, state laws vary. In some states, family court maintains jurisdiction to divide property. In others, probate court or surrogate court takes over. Probate court is the specialized court that deals with the assets and debts of a person who has died.

Child Support from a Deceased Parent

In New Jersey, anyone receiving child support and/or spousal support, alimony, from an ex-spouse should understand what happens to payments in the event of the ex-spouse’s passing.

First, child support must be considered. Child support payments do not automatically end if the paying parent dies. In New Jersey in particular, courts are empowered to enter a child support award for a minor child who survives a parent’s death.

But if a deceased parent has multiple spouses and/or children claiming a piece of the estate, things can get messy. When that happens, a seasoned family law lawyer is the best advocate for a surviving parent and child. Their job is to build a strong case for a child support award from the deceased parent’s estate.

Child Custody after a Parent’s Death

After one parent dies, custody of the children can be a hotly contested issue, especially if there are grandparents and other family members involved. After all, divorce tends to impact not just the immediate family members, but all the extended relatives who play a role in a child’s life.

Although the presumption in New Jersey is the surviving parent should get custody of the children, grandparents who can show cause as to why the surviving parent is unfit may just disrupt that custody arrangement. Grandparents can show it is not in the child’s best interests to live with the surviving parent because that parent:

  • Has abandoned the child.
  • Has a substance abuse problem.
  • Is involved in criminal activity.
  • Is physically or emotionally abusive.

Unfortunately for a surviving parent, the stress of an ex-spouse’s death is only compounded by in-laws who malign them to the court to get custody or visitation. These cases are quite complex, and with so much at stake, any parent facing a custody matter should seek the representation of a knowledgeable family law lawyer. Proving a parent’s fitness is necessary to retain legal and physical custody of the child and prevent grandparents from intervening.

What Happens to Alimony When an Ex-Spouse Dies?

Unlike child support, alimony or spousal support in New Jersey generally ends when the payee dies. Support also terminates when:

  • The spouse being supported remarries.
  • The spouse being supported moves in with a new partner.
  • The specified duration for alimony ends.
  • Either spouse dies.

Although alimony payments end immediately when the supporting spouse dies, the supported spouse can still claim back payments after their passing. To do so, the surviving spouse must file claim against the estate for reimbursement for any missing payments.

The person acting as executor of the estate is legally obligated to pay out alimony payments from the estate’s assets. Future alimony payments are not required unless the divorce agreement contains a specific provision stating otherwise.

Can I Still Get Pension Benefits if My Ex-Spouse Dies?

Pension or retirement funds acquired during the marriage are considered marital property. That is property that both spouses own jointly and divide equitably between them in the event of divorce. This happens even if retirement benefits are not scheduled to be paid out until well into the future, long after the divorce is final.

If the ex-spouse who earned the pension dies before their benefits vest, the other spouse is still eligible to receive them if it states so in the divorce agreement. If a pension or other retirement funds are treated as marital assets, those benefits may be extinguished on the death of the employee. Much depends on how each specific retirement plan is governed by federal law and how they are treated in the divorce agreement.

No one wants to think about an ex-spouse’s untimely passing, but it is important to consider the possibility and take steps to protect assets during divorce mediation or in court. The legal strategy one uses during divorce has a lasting impact on their long-term financial future, ideally for the best.

What is a Constructive Trust?

If an ex-spouse dies before the marital assets have been distributed, the surviving spouse has some options to ensure the process is completed fairly and equitably.

First, with the guidance of an experienced divorce lawyer, they can file an amendment as part of the divorce against the deceased person’s estate. Another option is something called a constructive trust. Unlike the name suggests, a constructive trust is not a literal trust.

Rather, it is a legal order that prevents one party from unjustly benefiting from estate proceeds that should go to another when a person dies. A constructive trust requires the person who unjustly benefitted to turn over property to the rightful surviving spouse and/or children.

It is worth nothing that although in this context a constructive trust is used as a tool to recover assets from an estate, they are applicable in many other situations in which one party misuses another’s assets.

For example, one can imagine a divorced parent who claims they cannot pay child support and alimony because they lost their job. However, their ex-spouse has evidence of them spending large amounts of money on travel, gambling, and other non-essential expenses. They might ask the court to impose a constructive trust over the paying spouse’s share of the assets to ensure future child support and alimony payments are secure.

As the Supreme Court states, a constructive trust is a fiction of equity created for the purpose of preventing unjust enrichment by one who holds legal title to property which, under principles of justice and fairness, rightfully belongs to another.

What if My Ex-Spouse Becomes Incapacitated?

As the recent pandemic has shown, life is unpredictable. In a matter of days and weeks, millions of seemingly healthy individuals became incapacitated due to the Coronavirus (COVID-19). What is the impact on a family when a person becomes so incapacitated that they cannot comprehend or communicate to make decisions about health, finances, or parenting during divorce?

Fortunately, courts have the ability to appoint a legal representative to act on behalf of the incapacitated spouse. If a spouse has not named a guardian prior to becoming incapacitated, a close family member or friend can apply to act on their behalf. If one is unavailable, the court can appoint a neutral third-party person to be a guardian.

The process of guardianship is not the same from person to person, as the court bestows the guardian a certain level of authority depending on how severely the person is impaired. If the incapacitated person is able to follow and participate in divorce proceedings to an extent, their guardian may only have limited power to make decisions. During divorce, the guardian can take over the negotiation and settlement of divorce proceedings, including entering into a property settlement agreement and final judgment of divorce.

It is clear there are many variables involved when a person dies or becomes incapacitated during and after divorce. Some divorce terms are not impacted by death, whereas others are effectively terminated when one ex-spouse dies.

The best advice for anyone experiencing the loss of an ex-spouse is to consult with a trusted divorce lawyer in their area. After reviewing the specific details of their case, a seasoned divorce lawyer can offer personalized legal guidance to help their client make practical and informed decisions.

Morristown Divorce Lawyers at Lyons & Associates, P.C. Assist Clients Dealing with the Unexpected Death of an Ex-Spouse

No matter how long ago divorce occurred, the death of an ex-spouse is life-changing, especially when children are involved. If you lost an ex-spouse and have questions about how this will impact child custody, support, and your family’s future security, the Morristown divorce lawyers at Lyons & Associates, P.C. are here to help. Our legal team knows how unsettling it can be when an ex-partner gets sick or passes away. We help you navigate the legal details to protect your interests so you can focus on dealing with the emotions that come with death and illness in the family. Call us at 908-575-9777 or contact us online to schedule a consultation. Located in Somerville and Morristown, New Jersey, we proudly serve clients in Somerset, Woodbridge, Morristown, Parsippany, Rockaway, Short Hills, Chatham, Randolph, Madison, and Morris Plains.