Dying while Divorcing in New Jersey: the “Black Hole”

Posted on: March 24th, 2016 by Mark R. Friedman

New Jersey has laws meant to protect a person from becoming impoverished if his or her spouse is no longer in the picture.

New Jersey’s elective share law protects a spouse from being disinherited when the other spouse dies. For example, imagine a man writes a will leaving his entire estate to his siblings and nothing to his wife. If he dies, his wife still has the right to take a minimum “elective share” from his estate, equal to roughly one-third of the estate (with many caveats). The law is meant to protect the surviving spouse from becoming impoverished.

New Jersey’s divorce law also provides for equitable distribution to divorcing spouses. With equitable distribution, the marital assets are divided between spouses in a manner that is supposed to provide fairly for the financial future of both spouses.

But what happens when one spouse dies in the middle of divorce proceedings? After the divorce papers are filed in court, but before the divorce is finalized (which can take years).

Currenty, New Jersey law (N.J.S. 2A:34-23(h)) provides for equitable distribution only upon a judgment of divorce. So if one spouse dies in the middle, equitable distribution may be off the table. At the same time, the elective share law (N.J.S. 3B:8-1) states that a spouse does not have a right to an elective share if the spouses were living in circumstances that would give rise to a divorce.

In other words, under current law, where spouses are divorcing, and one spouse dies in the middle, the other spouse can fall into a “black hole” where neither an elective share or equitable distribution are available. The surviving spouse may be completely locked out of the dying spouse’s assets and may become completely impoverished, when that’s the opposite of what the law intended.

The New Jersey State Bar Association has put forth a proposal to remedy the “black hole” problem. This proposed legislation would change the law so that, where one spouse dies in the middle of a divorce, no elective share can be claimed, but equitable distribution can still be made. This would remove ambiguity in the law, and solve an unfair problem that can leave surviving spouses with a very raw deal.

If you’re getting divorced, you should make sure you have estate planning documents in place that reflect your wishes.  If you’re interested in creating a custom-tailored estate plan, FriedmanLaw is available to help

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Homepage photo: Cows grazing at Meadowbrook Farm, Bernardsville, NJ by Siddharth Mallya. October 23, 2012.
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