Death and Divorce: What Happens When a Party Dies In The Middle of a Divorce?
As if being in the midst of divorce is not hard enough, for many years New Jersey Law created a black hole with respect to the rights of a surviving spouse in the event the other party died while a divorce is pending. Thankfully, that black hole has been repaired by recent legislation and case law in New Jersey.
On January 8, 2024, a new law was passed amending the equitable distribution at N.J.S.A. 2A:34-23(h)(2) to allow for the equitable distribution of marital property in the event of a party’s death during a pending divorce action. Prior to the amendment, the death of a party would abate the divorce proceedings and render statutory equitable distribution unavailable. In re Estate of Gillette, 2020 N.J. Super. Unpub. LEXIS 976, Kay v. Kay, 405 N.J. Super. 278. This created a “black hole” where the surviving spouse could be left without a remedy for the distribution of marital property. The amendment to N.J.S.A. 2A:34-23(h)(2) ensures that the court’s authority to distribute the property equitably does not end with the death of a party. It extends the laws of intestate succession and elective share to include partners in a civil union. It also stipulates that a surviving spouse, partner in a civil union, or domestic partner who has filed a complaint or against whom a complaint has been filed for divorce, dissolution of civil union, termination of domestic partnership, or divorce from bed and board, would not receive an intestate share of the decedent’s estate and has no right of election to take an elective share of the estate.
The application of this new law was again recently addressed by the New Jersey Appellate Court in Roik v. Roik, 2024 N.J. Super Lexis 3 (a reported decision). In Roik the parties entered into a Matrimonial Settlement Agreement and one of the parties died pending the uncontested divorce hearing. The Court in Roik applied the new statute provision retroactively and held that
“independent of the new statutes, we hold where, as here, parties have entered into a matrimonial settlement agreement (MSA) and one of the parties has died pending an uncontested divorce hearing, the Family Part may enforce the MSA as long as it is entered at arm’s length, and it is fair and equitable to effectuate the parties’ mutual intent to divide their assets and liabilities.”
These two recent changes in New Jersey Family law have now effectively closed the black hole in providing protections to a surviving spouse in a pending divorce proceeding. For assistance with your divorce or questions for how these new changes in the law may apply to you, contact Georgia Fraser, Esq. of Fraser Family Law Office, LLC for a consultation. 609-223-2099.