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What Happens If My Spouse Dies While Our Divorce Is Pending?

Feb 7, 2024 | Written by: Diana N. Fredericks, Esq. |

When a spouse dies during a divorce (before the divorce judgment is entered), the divorce proceeding ends and with that also ends the statutory right to equitable distribution.  The matter is then typically turned over to the Chancery General Equity Part and handled like an estate matter.  Sometimes a child or executor seeks to substitute in on behalf of the deceased.  This can become very complex, depending on the facts and circumstances.  It can also cause parents and children to become entangled in a divorce, creating further familial discord.  

However, there is an exception to this rule where “usual or exceptional” circumstances permit a party to invoke equitable remedies notwithstanding the other party’s death.  This has been known as the black hole (Carr) and is something the New Jersey Legislature has examined in recent years to remedy this problem.  (See my prior blog post about Carr v Carr.)

Importantly, in its recently published decision of Roik, the Appellate Division held that the amended statutes N.J.S.A. 3B:5-3(d), N.J.S.A. 3B:8-1 and N.J.S.A. 2A:34-23.1(h)(2) apply retroactively[1], holding that where parties have entered into a Matrimonial Settlement Agreement (MSA) and one of them has died pending an uncontested divorce, the Family Part may enforce the MSA as long as it is entered at arm’s length and is fair and equitable.

This case differed from prior cases in New Jersey because here there was a signed MSA, which is a contract that resolves a matrimonial dispute, and public policy favors enforcement of such agreements.  Moreover, the MSA expressed the parties’ mutual intent and belief that the terms of the agreement were fair and equitable, and that they each wished to be bound by its terms.  There was no evidence to the contrary presented, which is an important factual consideration.  In this case, a final judgment of divorce would have been entered but for scheduling delays, which are very commonplace these days in our system. 

This published opinion is important, as it provides clarity on the application of the new/revised statutes and how practitioners are to apply them.

If you are in the midst of a divorce and have a sick/ailing spouse, it is imperative to discuss your unique circumstances with your attorney, and possibly even involve trust/estate counsel to ensure zealous advocacy and protections. 

[1] This opinion devotes several pages to explaining why the new laws are to be applied retroactively, and indicates that the revisions are “clearly curative, which supports their retroactive application to cases in the pipeline.”

Diana Fredericks, Esq.


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 2022, to the NJ Super Lawyers list in 2023, and to the New Leaders of the Bar list by the New Jersey Law Journal in 2015.  Contact Ms. Fredericks 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.