Given the snail-like pace of New Jersey divorce cases, it’s not surprising that some folks are questioning whether they’ll be dead by the time their case is closed.

Even if they’re saying so tongue-in-cheek, our East Brunswick divorce attorneys recognize that this is actually a thing that happens - and it can substantially complicate matters for the surviving spouse. In fact, there’s a name for it: Black hole case.

Basically, N.J.S.A. 3B:8-1 stipulates that if you’re married, you get an elective share of your spouse’s assets if they die. As an entirely separate issue, N.J.S.A. 2A:34-23 states that spouses who are getting divorced have the right to equitable distribution of marital assets. Simple enough.

But here’s where it gets tricky: Once a married spouse files for divorce, the right of either spouse to an “elective share” of the decedent’s assets is legally eliminated. However, if one of you dies while the divorce case is pending, the law (as it's currently written) will deny the surviving spouse the right to equitable distribution of marital assets. So you don’t get the benefit of an elective share to which you’re entitled as a married partner, but neither do you get the equitable distribution to which you’re entitled as a divorced spouse. Thus, you’re left in a legal “black hole.”

New Jersey Family Courts have been grappling over these kinds of cases for decades. Last year, it seemed like finally, state lawmakers were going to do something about it. Assembly Bill A2351 would have resolved this vexing issue by allowing Family Courts to continue with the equitable distribution portion of the divorce case, even when one of those involved dies. The bill also clearly stipulated that the spouse who survives would NOT be entitled to get an elective share of the decedent’s estate. That bill passed in the New Jersey Assembly, and then moved to the Senate as SB2991, but it ultimately expired before the close of the legislative session in December 2022.

That basically leaves us right back where we started - relying on prior “black hole” divorce case rulings. Some of the earlier examples include:

• Jacobson v. Jacobson, 1976. A husband was accused of killing his estranged wife before their divorce was finalized. The husband wanted to toss the divorce case altogether - including claims she had made for alimony and equitable distribution. The court decided it would scrap the alimony claim, but declined to dismiss the case or her claim for equitable distribution. Justices reasoned the wrongdoer shouldn’t profit from the harm he caused. Still, those circumstances were exceptional, given that murder was involved, so it isn’t often cited in other black hole cases.
• Olen v. Olen, 1973. Here, a divorce judgment was granted in September 1972. However, the court had yet to formally enter that judgment. Just three months later, with the final ruling still pending, the wife (defendant) died. The surviving husband sought sole ownership of the marital property. But he didn’t have a survivorship right to the real estate the pair owned; he had rights as a tenant in common. The appellate court ruled that while the divorce action gets set aside when one spouse dies in the middle of it, the disposition of marital property doesn’t. Thus, the court held, the wife’s death didn’t prevent the equitable distribution of property or the award of attorney fees to which her estate was entitled.

Courts have continued wrestling with this issue for decades. Among the more recent rulings:

• Carr v. Carr, 1990. This was the first time we heard the phrase “black hole” in reference to these cases, and it came from a New Jersey Supreme Court ruling. Here, the second wife filed for divorce, but her husband died while the case was pending. In his will, he left his whole estate to his kids from his first marriage. The state high court denied the second wife equitable distribution because of the divorce filing. Beyond that, she wasn’t allowed to collect an elective share through probate due to the fact that she and her estranged husband were separated and in the midst of a divorce. Justices did concede that if sufficient evidence were presented, she could continue with the divorce litigation for the narrow purpose of equitably distributing marital assets - but only in “appropriate circumstances.”
• Kay v. Kay, 2010. Here again, the New Jersey Supreme Court weighed in on a black hole case. Here, the question was the extent to which a deceased spouse’s estate had any interest in marital assets. Here, the wife initiated the divorce in the summer of ‘06. A year later, the husband laid out his own assets and those in both their names. He also alleged the wife had unlawfully diverted marital assets while they were together. He died not long after. Subsequently, his estate sought the court’s intervention to continue the divorce proceedings so that the estate could complete equitable distribution and recover those diverted assets. Justices underscored the importance of preventing unjust enrichment by survivors and ensuring the decedent’s estate retained the marital property to which it was entitled for the benefit of the decedent’s heirs. As such, the estate was allowed to continue with the divorce proceedings for the sole purpose of equitably distributing the marital assets.

So the bill that was introduced in recent years would have essentially codified these rulings, and given divorce lawyers clear rules to follow in these instances. It’s possible lawmakers haven’t given up the effort, but in the meantime, the New Jersey Supreme Court precedent is the standard.

Call Rozin|Golinder Law, LLC today at (732) 810-0034 for a free and confidential consultation.