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Divorce and Equitiable Distribution with the Death of A Spouse During Divorce Litigation

Aug 5, 2015 @ 05:41 PM — by Michael Green

What happens if a party to a divorce dies during the litigation.  Many would be surprised to learn that the party's estate may seek equitable distribution of assets after the death of a spouse even if that spouse has died during the divorce litigation and prior to any judgment of divorce being entered by the Court.

New Jersey case law, divorce law and family law, has established precedent such that an estate of a surviving spouse has the right to continue the litigation and seek the equitable distribution of all assets and debt after the death of the spouse.  At Green & Associates, as divorce attorneys, we have had experience with such cases.  If you are the executor of such an estate, please call us in our East Brunswick office at 732-390-0480 or at our Fort Lee office at 201-242-1119 for a free consultation as to such an issue and to determine the rights of an estate where the spouse has died during the divorce litigation.  

As part of equitable distribution, the executor of an estate may seek on its behalf distribution of all retirement accounts, savings accounts, CDs, and real property, including the marital residence and other real properties.  The executor may seek these monies on behalf of the heirs named in a will that has been probated.  Heirs named in a will do not have to be biological children but may be even non-family members.  

Often, a constructive trust will be imposed on the marital estate so that no assets may be dissipated until a final determination by the Court of how the assets will be distributed between the surviving spouse and the decedent's estate.

The law addresses even unusual situations such as this because anything can happen during a divorce and it has happened often enough such that prior cases have established case law that upholds distribution to an estate of a deceased spouse that has died during divorce litigation and prior to its final outcome.  The rights of the deceased spouse to equitable distribution of property and assets accrued during the marriage pass to his or her estate in such a situation.


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