When A Spouse Dies Before the Divorce Is Final

Marriage is a binding legal contract, terminated only by death, divorce or legal annulment. As such, the contract entitles spouses to certain rights regarding such issues as property distribution, real estate protections, spousal support, and inheritances. What happens, though, if a couple files for divorce but one spouse dies before the process is completed?

While some states in this situation will dismiss the divorce case and consider the marriage ended by death, New Jersey takes a different approach. In New Jersey, the Family Court retains its jurisdiction and continues to preside over the distribution of the couple’s assets under the State’s equitable distribution laws. The estate or representative of the deceased spouse may step in and continue pursuing the distribution of the couple’s assets through family court.

This situation also has an impact on certain rights of the surviving spouse. For instance, the surviving spouse loses his or her rights to automatic inheritance usually granted to the survivor if the deceased spouse died without a will. Also, the surviving spouse is prohibited from claiming their statutory elective share of their deceased spouse’s estate. Furthermore, the surviving spouse acting as executor or administrator of their spouse’s estate will most likely be contested due to a conflict of interest.

Certain things do not change, however. If the surviving spouse had been named a beneficiary on the deceased’s life insurance policy, retirement or pension accounts, or properties held with a right of survivorship, he or she may still be entitled to receive those assets unless these rights were previously revoked by a court order, a specific statute or a pre-existing settlement agreement. Additionally, separate property not subject to equitable distribution in a divorce, will be distributed pursuant to estate distribution laws, although a surviving spouse’s rights in this regard may also be limited by the pending divorce.

A carefully executed estate plan including an up-to-date will, as well as a prenuptial or postnuptial agreement, can help protect against consequences such as these. An experienced Family Law attorney can help ensure your rights are protected.