In Family Law, death is rarely part of the initial conversation. Clients focus on divorce, support, custody, and equitable distribution, often assuming, implicitly, that both parties will live long enough for the legal process to run its course. Practitioners, likewise, may concentrate on the immediate financial and parenting issues before the Court, giving little attention to how death might alter those rights. When death does occur while a divorce is pending, however, the legal consequences can be dramatic and often unintended.
New Jersey law treats death as a legally dispositive event. The failure to address death expressly in Prenuptial Agreements, Settlement Agreements, and Judgments of Divorce frequently leads to litigation between surviving spouses and estates. Litigation that could have been avoided with thoughtful drafting.
This article examines the intersection of death and divorce in New Jersey Family Law, with particular focus on the lessons drawn from Carr v. Carr and Roik v. Roik. It addresses how practitioners can proactively plan for death in Prenuptial Agreements, during divorce litigation, and in final judgments, including the treatment of alimony, payment-in-lieu obligations, child support, and educational expenses.
Death During Marriage and Pending Divorce
The legal consequences of a party’s death depend not only on whether the marriage has ended, but on where the case sits procedurally the moment death occurs. This distinction is often overlooked by clients and sometimes by counsel, particularly in cases that have been pending for extended periods or where the parties have been functionally separated for years. New Jersey law makes clear, however, that neither emotional separation nor advanced negotiations substitute for formal legal status.
When death occurs during an intact marriage, the surviving spouse generally retains all statutory protections afforded under probate law, including intestate rights and the elective share, unless those rights have been knowingly and voluntarily waived in a valid prenuptial or marital agreement. The more complicated, and historically problematic scenario arises when a spouse dies while a divorce action is pending but before entry of a Final Judgment.
For many years, New Jersey law produced outcomes that were both harsh and counterintuitive in this setting. Once a Divorce Complaint was filed, a surviving spouse could lose certain inheritance rights traditionally associated with marriage. At the same time, longstanding principles held that equitable distribution could not proceed after the death of a spouse if the marriage had not been formally dissolved. The result was a legal void in which a surviving spouse could be left without meaningful recourse to marital assets, despite years of marriage and ongoing litigation.
Carr v. Carr: Equity Filling a Procedural Gap
Carr v. Carr arose squarely within this framework. In that case, a spouse died during the pendency of divorce proceedings, before entry of a Judgment of Divorce. Because the marriage had not been dissolved, equitable distribution could not proceed in the traditional sense. Yet the posture of the case also made it inequitable to treat the surviving spouse as though no marital economic partnership had ever existed.
Faced with this dilemma, the Court declined to apply rigid doctrinal rules that would produce an unjust result. Instead, it invoked equitable principles to fashion relief, permitting the trial Court to consider remedies designed to prevent unjust enrichment and to account for the economic realities of the marital relationship. While this approach avoided a manifestly unfair outcome, it came at a cost. The remedy was fact-sensitive, discretionary, and required additional litigation between the surviving spouse and the decedent’s estate.
The lesson of Carr is not that Courts will always intervene to correct inequity, but that reliance on judicial discretion after death is an uncertain and expensive substitute for careful planning.
Roik v. Roik and the Modern Statutory Framework
Subsequent developments in both case law and statutory reform have significantly altered this landscape. New Jersey law now expressly authorizes Courts to address equitable distribution even when a party dies before entry of a Final Judgment, provided that a divorce action was pending at the time of death. In that posture, equitable distribution operates as the exclusive mechanism for resolving marital property rights, and traditional inheritance claims tied to spousal status no longer apply.
Roik v. Roik illustrates how these principles operate in practice. There, the parties had negotiated and executed a comprehensive Marital Settlement Agreement that resolved all economic issues and was intended to be effective upon execution, not merely upon incorporation into a Judgment of Divorce. When one party died before the uncontested hearing could be held, the question became whether the absence of a final judgment barred enforcement of the parties’ agreement.
The Appellate Division answered that question in the negative. Emphasizing the parties expressed intent and the fairness of the agreement, the Court concluded that the Family Part retained authority to enforce the settlement notwithstanding the intervening death. The decision reflects a broader shift away from outcomes dictated by procedural chance and toward enforcement of clearly articulated agreements reached at arm length.
Together, these developments underscore a central reality of modern New Jersey Family Law. While Courts now possess greater authority to prevent inequitable results when death intervenes, the most reliable way to control outcomes remains proactive and precise drafting.
From Case Law to Practice: The Imperative of Proactive Planning
The lessons of Carr v. Carr and Roik v. Roik converge on a single, unavoidable theme. Outcomes in cases involving death and divorce often turn less on equity or intent and more on timing and drafting. In both cases above, the Courts applied settled legal principles, yet the results were starkly different. For practitioners, these decisions underscore that passivity is a choice, and often a costly one.
The most effective way to avoid the harsh and frequently unintended consequences illustrated by these cases is proactive planning. By anticipating the possibility of death, however uncomfortable that discussion may be, Family Law attorneys can help clients control outcomes rather than leaving them to statutory defaults or procedural chance. Proactivity in this context is not alarmist; it is prudent. It allows parties to define their financial expectations clearly, reduce the risk of post death litigation between surviving spouses and estates, and ensure that client intent governs even when unforeseen events intervene.
With this framework in mind, practitioners should approach Prenuptial Agreements, Marital Settlement Agreements, and Final Judgments not merely as instruments to resolve divorce, but as comprehensive contracts that account for the full range of ways a marriage may end.
Prenuptial and Marital Agreements: Drafting with Death in Mind
Prenuptial Agreements are often drafted with divorce as the primary focus, while death is treated as a secondary or assumed issue. This approach is a mistake. A comprehensive Prenuptial Agreement should address not only what happens if the marriage ends by divorce, but also what happens if it ends by death, whether during the marriage or during a pending divorce action.
Clear waivers of elective share and intestate succession rights are essential, as is explicit language regarding whether financial obligations survive death. If the parties intend that certain payments or benefits continue to the surviving spouse, or alternatively terminate upon death, that intent should be unmistakably stated. Agreements should also address life insurance, retirement benefits, and survivor interests, and should require the parties to maintain estate planning documents consistent with the agreement.
Prenuptial Agreements, Wills, and Blended Families: Coordinating Estate Planning with Marital Intent
The intersection of Prenuptial Agreements and estate planning becomes particularly troubled in second marriages involving children from prior relationships. A common but dangerous assumption is that a Prenuptial Agreement alone will protect children from a first marriage. It will not, at least, not without proper coordination with testamentary documents.
The Problem of Prior Wills
It is not uncommon for a party entering a second marriage to have an existing will that:
Absent careful planning, the subsequent marriage, even with a Prenuptial Agreement, can trigger statutory spousal rights that override or complicate that estate plan. Moreover, inconsistencies between a Prenuptial Agreement and a later executed will can invite claims of ambiguity or lack of intent.
Best Practices for Protection
To avoid these conflicts, practitioners should:
The goal is not merely to waive rights, but to ensure that testamentary intent, marital intent, and statutory defaults all align.
Death While Married vs. Death During a Pending Divorce: Addressing Both Scenarios in Prenuptial Agreements
A sophisticated Prenuptial Agreement should not treat death as a monolithic event. The legal consequences differ dramatically depending on whether death occurs:
Drafting for Both Outcomes
Agreements should expressly state:
Absent to such clarity, Courts may be forced to fill gaps through equitable principles, a result that increases uncertainty and litigation risk.
Marital Settlement Agreements and Final Judgments of Divorce warrant similar care. Practitioners should address whether alimony terminates upon the death of either party, whether any payment-in-lieu or lump-sum obligations bind the estate, and whether security (such as life insurance) is required. Ambiguity in this context invites post-judgment litigation, often between a surviving former spouse and the decedent’s estate.
Practice Tip: Any Prenuptial or Reconciliation agreements should expressly address:
Essential Provisions to Include:
Alimony and Financial Obligations After Death
Under New Jersey law, alimony typically terminates upon the death of either party unless the parties agree otherwise. While this is well known, problems arise when agreements are silent or imprecise. Courts are then left to divine intent from incomplete language, a task that frequently yields unpredictable results.
Where parties intend that support obligations survive death, whether through lump-sum payments, installment obligations binding on the estate, or insurance-funded arrangements, those intentions must be expressly memorialized. Conversely, if termination upon death is intended, practitioners should resist the temptation to rely on statutory defaults and instead state the termination explicitly.
Drafting Tip: Agreements that waive alimony upon divorce but are silent as to death may invite litigation over whether support-like payments were intended to survive.
Custody and Death: Drafting with Title 9 in Mind
Custody provisions require separate and careful treatment when death is a possibility. Under Title 9 of the New Jersey Statutes, custody determinations following the death of a parent are governed by the best interests of the child, not by contractual agreements between adults.
Statutory Framework
When one parent dies:
However, that presumption is not absolute, particularly where prior concerns regarding fitness, stability, or parenting history exist.
What Can (and Cannot) Be Drafted
While parents cannot contract away a Court’s obligation to apply the best-interests standard, practitioners can:
Silence on these issues leaves families vulnerable to contentious and emotionally charged litigation at precisely the moment they are least equipped to handle it.
Child Support and Educational Expenses Upon a Parent’s Death
Child support presents a different analytical framework. Child support obligations generally do not terminate upon the obligor parent’s death. New Jersey Courts consistently emphasize the importance of protecting children’s financial security. For that reason, life insurance provisions are a critical component of any child support order.
Educational expense obligations raise additional concerns. If the parties intend that college contribution obligations survive a parent’s death and bind the estate, that intent must be clearly stated. Practitioners should not assume that a general life insurance provision will adequately address future educational costs, nor should they assume that an estate will be obligated absent clear contractual language.
Coordination with estate planning is especially important in this context, as unfunded obligations can leave children without the resources the parties intended to provide.
Drafting Security for Equitable Distribution and Support
Practitioners should also consider:
For equitable distribution obligations paid over time, alternative security mechanisms such as liens, trusts, or escrow arrangements may be appropriate and should be expressly addressed.
Practical and Ethical Considerations
From a practice standpoint, death-related contingencies should be revisited whenever agreements are drafted, modified, or enforced. Practitioners should document client intent carefully and ensure that clients understand how death can alter legal outcomes.
Practice Tip:
Conclusion
Death has the power to abruptly reshape the legal landscape of a marriage or divorce. The lessons of Carr v. Carr and Roik v. Roik make clear that timing, posture, and precise drafting can determine whether financial rights survive or vanish. By addressing death directly and thoughtfully in Prenuptial Agreements, Settlement Agreements, and Judgments of Divorce, New Jersey Family Law practitioners can safeguard client intent, reduce litigation, and bring clarity to an area of law where uncertainty often reigns.
