When Divorce Meets Death: New Jersey’s Legal Approach

Delve Into the Legal Intricacies Of Divorce, Death, and Recent Legislative Changes in New Jersey.

When Divorce Meets Death: New Jersey's Legal ApproachGetting a divorce can be a messy, complicated, and emotional process.  When there is a death of a spouse before the divorce process has been completed, the results are often confusing.  New Jersey addressed this issue in recent legislation regarding what spouses are entitled to when their partner dies during the divorce process.  What was once a muddled calamity of conflicting court decisions has now been transformed into a clearer path that could completely affect the outcome of the divorce.

Dealing with Spousal Death During NJ Divorce Proceedings

When a spouse dies after the Complaint for Divorce is filed but before the divorce is finalized (Judgement of Divorce), the divorce proceedings end. If an agreement or approved settlement of the assets exists, the family court is charged with the equitable distribution of the assets, barring the presence of a prenuptial agreement. Then, there are many cases that fall in between these two concrete scenarios, which leaves questions as to the applicability of a last will and testament, what happens upon death in the absence of a will, and the distribution of assets when the couple had been living separately prior to the decedent’s passing.

New NJ Law on Spousal Death During Divorce and Inheritance Terms

The new law regarding the death of a spouse during a divorce and the terms of inheritance is complex.  If the spouses had spoken of divorce but were still living together as a couple, and the decedent awards their spouse an inheritance, the will most likely stands. If neither spouse had yet to file for divorce but was living separately, and the decedent left their spouse nothing, the surviving spouse cannot take an elective share as they would have had they been together.

The elective share equals approximately one-third of the estate’s value, including the cash value of investments, life insurance, joint-held property, bank accounts, retirement funds, annuities, and other assets.  According to this new law, the ex-spouse is not entitled to an elective share if the spouses were separated or in the process of getting divorced when the death occurs and they were left out of the will. As opposed to the usual elective share concept applied, the surviving spouse will receive an equitable portion determined by the court.

If the decedent names their former spouse in their will, the assets will most likely be distributed as described.  If the surviving spouse is left out of the will, or there is no will, the family court will be responsible for assessing the distribution of assets. If a settlement agreement is reached and signed during the divorce process or an agreement for equitable distribution is in writing, the surviving spouse will most likely receive what is agreed upon.  If during the divorce proceedings, the spouses show affirmative actions or written drafts to the effect of the distribution of property, the surviving spouse may receive their share in accordance with these terms.

Surviving Spouses and Marital Debt Resolution

The estate will pay any debts incurred by the decedent in which the spouse is not a co-signer. Credit card debts (for the decedent only) and student loans are not considered marital debts. However, if the individual credit card was used to pay household bills or make purchases for the family, such as food, clothing, vacations, etc., the debt can be considered shared.

Shared debts include mortgages, credit cards, personal loans, car loans, and medical expenses.  Spouses are held liable for necessary expenses during the marriage under something called the “doctrine of necessaries.”  This allows medical providers and other creditors to seek payment for services or goods that were necessary to support the household.  The burden of proof is on the creditors, but if they succeed, the surviving spouse must pay the debt.

This does not mean that the surviving spouse must pay all the debt accumulated during the marriage.  Part of the job of family court is to determine how much the surviving spouse is responsible for and what portion the decedent’s estate is required to pay before the estate is settled.  If an MSA stipulates who is responsible for the debts, the agreement is followed just as in the distribution of assets.

Child Custody for Surviving Parents and Alternatives After a Loss

Usually, the surviving parent is given custody of the children unless the surviving parent is unfit.  Accusations or convictions for child neglect or abuse prevent the surviving parent from taking care of the children.  Grandparents or other family members may seek custody of the children.  If there are no relatives willing to take the children in, DCP&P will elect a foster family for them.

Acosta-Santana v. Santana: A Case Study in Estate Distribution and Divorce Proceedings

New Jersey's Legal Response to Divorce and the Passing of a Spouse in Paramus, NJIn Acosta-Santana v. Santana, the plaintiff, Nilda Acosta-Santana filed for divorce against Cesar A. Santana in September 2015.  Cesar executed a will naming their three shared children as equal beneficiaries of his estate.  He passed away in October 2016, before the divorce agreement was completed.  The executor of his estate submitted a motion for the court to allow the estate to replace Cesar in the divorce process. Nilda submitted a cross-motion requesting a summary judgment.  The trial court determined that the divorce process ended with Cesar’s death and granted Nilda the summary judgment for divorce.

The defendant filed a motion to reconsider because the resulting action would mean Nilda would receive much more of the estate than if it had been divided under equitable distribution.  Nilda received all of the shared assets, including joint bank accounts, property, life insurance benefits, retirement accounts, and any other joint assets, which gave her some $600,000 more than if the assets were divided in the divorce. The executor filed a motion for reconsideration and was denied.  The case was appealed by the estate, and the trial court’s decision was upheld.

Consult a Wyckoff Lawyer for Help Managing Family Issues after the Passing of a Spouse in a Divorce Process in NJ

Thinking about divorce and what could happen were you unable to settle your divorce are anxiety-provoking situations. Whether you are considering a divorce, are getting divorced, or would like to know how a divorce will affect your estate plan, our experienced team of attorneys can offer guidance and help you build a strategy customized to best meet your needs. The complexities of divorce and death are extensive, and we can guide you through the process to give you the most favorable result. Our family lawyers at The Montanari Law Group serve clients in Woodland Park, Haledon, West Orange, Ringwood, South Orange, West Milford, Wyckoff, Hackensack, Glen Ridge, and across Northern New Jersey.

For more information, contact us today at (973) 233-4396 to get started.  We can also be reached online.


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