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What Happens if My Spouse Dies While in the Middle of a Divorce?

You and your spouse have finally reached the point of no return. You’ve gotten your finances in order, you’ve collected documentation about your assets and debts, you’ve prepared thoughts about child custody, and you file for divorce. A month later, while the case is still ongoing, your spouse unexpectedly passes away. What happens now? Does the divorce continue? Is the case dropped? Are you treated as their spouse for probate purposes? Continue reading for a discussion of how the courts will respond when a party to a divorce dies during the process, and call a savvy Englewood divorce attorney for help with a New Jersey family law matter.

What Happens to Our Property if My Spouse Dies Mid-Divorce?

If your spouse passes away before either of you file for divorce, then the fact that you planned to file should not pose much of a problem (other than the elective spousal share of the estate, discussed below). If, however, the divorce complaint has been filed but a final judgment was not yet rendered when one spouse passes away, the situation becomes complicated.

Depending on the jurisdiction, the court might let the matter proceed and substitute a representative of the estate for the deceased party. That is the preferred approach during many civil cases when one party dies. The divorce would continue, and the estate would represent the decedent’s interests, allowing equitable distribution of property to proceed. Alternatively, the jurisdiction might require that the case simply be dismissed at that point, leaving the matter of property distribution to be dealt with in probate.

Although the law is not perfectly established, New Jersey courts follow the latter approach. The death of a spouse before entry of final judgment will terminate the divorce proceedings. The surviving spouse will take their share of the decedent’s property subject to the decedent’s will and New Jersey probate laws, as opposed to via division of the marital estate based on family law.

The Surviving Spouse Share of the Estate

When a married person passes away with a surviving spouse, New Jersey law gives the spouse the right to take an elective share of one-third of the estate. That elective share overrides whatever the decedent put in their will. However, if at the time of death the decedent and their spouse were living separate and apart in different habitations or had ceased to cohabit as man and wife, the spouse is not entitled to that elective share.

If you are in the midst of a divorce when your spouse passes away, it is quite likely that the exception to the elective spousal share applies. Your share of the estate will be determined, instead, by the decedent’s will and other inheritance laws.

New Jersey courts recognize, however, that this might leave a party in a catch-22: If they are in the midst of a divorce, their spouse likely disinherited them from the will. The surviving spouse would also be subject to the elective share exception, leaving them with no elective claim to their spouse’s property, but also without a divorce judgment equitably distributing the marital estate. The surviving spouse, then, might be left with nothing.

In 1990, the New Jersey Supreme Court addressed this exact issue and provided a solution: The surviving spouse was able to pursue relief based on a “constructive trust” under quasi-contractual law. A court can create a constructive trust when property is held by a person who, under the principles of fairness, should not be entitled to that property. Essentially, the Court allowed the party to find some way to claim the property she would have been owed under either family law or probate law, as the principles of equity and fairness dictated she should not be left with nothing.

Talented Legal Representation for Your New Jersey Divorce

If you’re considering divorce in New Jersey or dealing with child support, child custody, property division, or other family law issues, contact the Englewood family law attorneys Herbert & Weiss at (201) 500-2151.