What Happens if a Spouse Dies After a Complaint for Divorce is Filed?
Oct 3, 2025 | Written by: | Share
On January 8, 2024, New Jersey enacted a new law that resolves the conflict between equitable distribution and estate statutes (P.L. 2023, c. 238 (Bill A2351). The law allows the Family Court to continue handling asset distribution after one spouse dies during a divorce, while also preventing the surviving spouse from claiming an intestate or elective share of the deceased's estate. This closes a previously described "black hole"[1] in the law, where the courts had unclear jurisdiction when a divorce was pending and a party passed away.
The amendments clarify that if one spouse dies after either spouse has filed a complaint for divorce (or for dissolution of a civil union), but before the court has rendered a final judgment, the Family Court retains the power to distribute the couple’s assets and debts. The surviving spouse will not receive an intestate or elective share under estate law.
Prior to the amendment, it was almost impossible to proceed with equitable distribution if a spouse died during divorce proceedings. Now, since the statutory amendment, courts are expressly allowed to make an equitable distribution of the deceased spouse’s assets even if they die during the divorce.
While there is likely little you can do to address the death of a spouse during the divorce, there are planning steps you may want to take, particularly if you are having health or other issues that cause concerns. For example:
- Find a (new) estate planning attorney. If you have never worked with an attorney for estate planning, now is the time. If you have, the previous estate planning attorney that assisted you and your spouse is likely conflicted and cannot continue to represent either/both of you during your divorce proceedings (as you may have conflicting desires, results, positions) and you may not want to work with someone (even if you could) who had/has a relationship with your soon to be ex-spouse. Have your divorce attorney assist you with this, as the attorneys should likely work together.
- Prepare new estate planning documents. You may want to disinherit your current spouse if you are in the process of a divorce, and their friends/relatives. You may want to discuss updating trusts and changing trustees and/or executors, especially if those roles were assigned to a spouse or spouse’s friend/family.
In addition to trusts, Living Wills, Healthcare Proxies, Powers of Attorney, and funeral forms should all be reviewed, revisited and revised. For example, you may not want your soon-to-be ex making decisions about your medical outcomes.
- Review Beneficiary Designations. Is your spouse still the beneficiary of your accounts? When can you change those designations? You may not be permitted do so during the pendency of your divorce, which is why it is critical to have your divorce and estate planning attorneys work together and plan accordingly. It is also imperative that your change your beneficiary designations post-divorce, as a failure to do so may result in the prior spouse being permitted to receive same, despite the divorce.
Divorce is often quite nuanced and complex. Preparing your estate simultaneously is a great way to protect yourself and your estate in the event of an unexpected death during a divorce.
[1] In 2023, this author published an article about the complexities of death and divorce applicable before the statute was modified in 2024.
Diana N. Fredericks, Esq., devotes her practice solely to family law matters. She is a Certified Matrimonial Law Attorney and was named to the NJ Super Lawyers Rising Stars list in the practice of family law by Thomson Reuters from 2015 through 2021, to the NJ Super Lawyers list in 2023, 2024, and 2025, and to the New Leaders of the Bar list by the New Jersey Law Journal in 2015. Contact Diana for a consultation at 908-735-5161 or via email.
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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.