Here is what you need to know.
The amendments clarify that if one spouse dies after either spouse has filed a complaint for divorce (or for dissolution of a civil union), but before the court has rendered a final judgment, the family court retains the power to distribute the couple’s assets and debts. The surviving spouse will not receive an intestate or elective share under estate law.
Intestate and Elective Shares
To understand the effect of the new law, it is helpful to know what it means to receive an “intestate” or “elective” share of a spouse’s estate. Normally, if someone dies without a will, their surviving spouse is entitled to an “intestate” share. In New Jersey, this share could be as much as 100% of the estate or as little as 25%, depending on the value of the estate and the existence of other close relatives of the decedent, such as parents, or children from other relationships.
If the decedent has a will that attempts to disinherit the surviving spouse by leaving them nothing, the surviving spouse has the right to an “elective” share. This amounts to “one-third of the augmented estate” (which sounds like a simple calculation but can actually be quite complicated).
How a Pending Divorce Affects the Rights of a Surviving Spouse
Filing for divorce does not void either spouse’s will or end the right of a surviving spouse to receive an intestate share if there is no will. It does, however, end a surviving spouse’s right to take an elective share if there is a will that leaves them nothing. Separation can also end this spousal right, even if neither spouse has filed for divorce.
If one spouse dies after the complaint is filed but before there is a final judgment, the divorce case ends. Under previous law, this meant that the family court lost the ability to distribute assets under the equitable distribution statute. In many cases a surviving spouse would benefit from this. Instead of receiving a percentage of the marital assets in the divorce judgment, they might receive all of them as a surviving spouse. The result could be quite different, however, if the couple had no joint assets, if the decedent had no will, or if the surviving spouse was cut out of the decedent’s will.
Two contrasting cases demonstrate these potentially disparate results:
Carr v. Carr
In the 1990 case of Carr v. Carr, the husband died during divorce proceedings. His will left his entire estate to his children from a previous marriage. The New Jersey Supreme Court held that the only way the wife could claim any of the marital assets was through creation of a constructive trust. She was precluded from receiving an elective share of the husband’s estate due to the pending divorce and was also precluded from receiving anything under equitable distribution because the husband’s death ended the divorce case.
Acosta-Santana v. Santana
In the 2018 case of Acosta-Santana v. Santana, the husband also died during the divorce proceedings. In that case, however, the wife was the beneficiary of the marital home, the life insurance policy, the husband’s retirement benefits, and all of the couple’s joint accounts. A draft settlement in the case would have given her half the marital assets, but she received approximately $600,000 more than this as a result of the husband’s death during the divorce.
Although most people embarking on a divorce will not run into this kind of situation, it is always a possibility. The chances are greater if the divorce process takes a long time, especially if either party is elderly or in ill health. The 2024 change in the law takes the unpredictability out of what would happen in such a case. As stated by one of the bill’s sponsors, Assemblywoman Victoria Flynn (R-Monmouth), “In the rare circumstance a spouse dies before a judge signs off on the divorce…surviving spouses in divorce proceedings in New Jersey have either received everything or nothing. This is a fairer process.”
If you are thinking about a divorce or are in the middle of one, it is important to consider how divorce might impact your estate plan. If you do not yet have an estate plan, this is a good time to prepare one. For more information on how divorce and estate planning affect each other, contact one of our experienced family law attorneys. We can refer you to a trust and estates attorney if necessary. For more information, call us at 888-888-0919, or please click the green button below.
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