This month’s New Jersey Law Journal tackles the issue of death during divorce.

Thankfully, death of a party to divorce is not a common occurrence. However, it is not uncommon. Domestic violence, risky behavior, and suicide are among the most common causes. In other cases, serious medical problems may contribute to divorce and result in death of a party before a separation is legally finalized.

Just this week, a New Jersey police officer has been accused of killing his estranged wife after filing for divorce, according to local media reports. Authorities contend the Newark police lieutenant filed for divorce June 7, citing “irreconcilable differences,” before killing his wife and shooting another man he found at the residence a week later.

An experienced Monmouth family law firm understands death of a party to divorce can seriously complicate divorce proceedings.

In the recent appellate decision in Nildia Acosta-Santana v. Cesar A. Santana, A-5646-16T4, husband died during divorce, prior to a property settlement agreement being finalized. During divorce, husband had executed an updated Last Will and Testament, which largely left his estate to his children and named his brother as executor.

New Jersey law commonly allows a representative of decedent’s estate to intervene in matrimonial actions that are pending at time of death. However, trial court granted summary judgment to the wife in this case, ruling the state’s equitable distribution statute does not authorize distribution of marital assets outside of divorce.

Probate & Intestate Estates in New Jersey

Probate assets pass in accordance with the party’s will or laws of intestacy based on the general rule that divorce is personal, and thus the estate will not be substituted as a party pursuant to N.J. Ct R. 4:34-1(b), which governs substitution of parties in New Jersey court proceedings.

In this case, because the court did not recognize the husband’s new will as superseding wife’s marital property rights, probate assets will pass in accordance with a previous will or, in the alternative, will be decided by rules governing intestate estates for those who die without a will.

New Jersey intestate estate laws grant a spouse all marital property in cases where a couple is childless or has children together. In cases where a party had children from another relationship, a spouse is entitled to the first 25 percent of an estate (at least $50,000 but not more than $200,000) of an estate, as well as half the remaining balance.

In this case, the appellate court ruling granted the wife more than $160,000 she otherwise may not have received as part of a settlement agreement.

Nor does death have to occur during divorce to have a significant impact on a party’s property rights. Among the most common complications are life insurance policies and retirement and pension funds where the beneficiary has not been updated after a divorce. In such cases, it is common for a former spouse to be named beneficiary of very significant assets, long after a divorce, even in cases where a party has remarried and raised another family.

While such awards have been challenged in New Jersey courts with varying degrees of success, it’s critical that your New Jersey divorce lawyer review existing estate plans at the outset of your divorce, and move to protect both your short-term and long-term property rights from the start.

Call Rozin|Golinder Law, LLC today for a free and confidential consultation.