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How New Jersey Courts Handle Death During Divorce


If one spouse dies before the entry of final judgment in a New Jersey divorce case, the situation can quickly get complicated. It is essential to discuss your intentions and legal options with an experienced Freehold divorce attorney to ensure your wishes are carried out.

In the 2018 New Jersey appellate court case of Acosta-Santana v. Santana, numerous questions arose regarding the extent to which New Jersey courts will protect the estate of one who dies during a divorce.

The case involved a husband who died in the middle of the divorce proceedings, before the marital settlement agreement was finalized. They’d been married 25 years when the wife sought a divorce in 2015. In June the following year, the husband executed a will that left his estate to his children, naming his brother an executor and siblings as contingent beneficiaries. That fall, a draft property settlement agreement was circulated that would have given each party half the marital assets. However, before that agreement was executed, the husband died.

In many cases with similar circumstances, the estates of decedents can intervene in the divorce action to allow the family court to continue with equitable distribution of the marital estate. Here, the estate filed to intervene and the wife responded with a request for summary judgment, arguing the state’s equitable distribution statute doesn’t authorize any distribution of marital assets except for in the case of a divorce, barring exceptional circumstances. The trial court granted her motion and the appellate court affirmed.

In other words, when death occurs during a New Jersey divorce, assets subject to probate are passed in accordance with the decedent’s will. The estate cannot be substituted as a party to the divorce, per NJ Ct. R. 4:34-1(b).

Transfers from an estate to a spouse or former spouse can be revoked pursuant to a divorce, but not the mere filing of a divorce complaint.

In this matter, the divorce court lost jurisdiction and the case went to probate, with the wife receiving approximately $600,000 more because he died during the divorce than she would have had the divorce been finalized and assets subject to equitable distribution. She was the sole beneficiary of the marital home, the life insurance policy, his retirement benefits and all jointly-owned accounts. The appellate court concluded this did not amount to unjust enrichment.

The estate sought certification from the New Jersey Supreme Court but was denied.

In the 1990 New Jersey Supreme Court case of Carr v. Carr, the court held that the death of a spouse prior to entry of a final judgment in the divorce case effectively terminates the divorce proceedings. That means you cannot overlook the following soon after you file:

  • Last will and testament. This designates your beneficiaries, the executor of your estate. If you do not want your spouse to be the one executing your will in the event of your death during divorce, you must revoke all former wills and designate a new executor. Your will might also address guardianship of minor children (though it’s unlikely your spouse won’t receive custody of any children during marriage unless he or she is deemed an unfit parent).
  • Financial accounts, retirement accounts and other financial accounts. There may be some challenges in removing your spouse from these accounts during a divorce proceeding because some may be subject to equitable distribution. You must consult with an experienced family law attorney before taking such action.

If you have questions about your divorce in New Jersey, we can help.

To learn more about New Jersey divorce, contact Rozin | Golinder Law today at (732) 810-0034.

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