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If you die as you go through a divorce does the other litigant inherit your assets in NJ?

Manalapan, NJ |

My question is if you are going through a divorce and you die does the other soon to be ex-spouse inherit your assets? I am going through a divorce and have had some major life threatening medical issues that were from emotional abuse.My ex spouses lawyer is aware of this and I believe He is trying to exploit this by dragging out the case.I believe this unethical behavior is designed to create more stress.My concern is if something happens to me does she inherit all of the assets?

Attorney Answers 5


It depends on where you are in the process. I assume a complaint has been filed? It also depends on the types of assets and how they were acquired. If you don't already have an attorney, getone now. You may find some of the articles here: helpful.

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The case is point is Carr v. Carr, 229 N.J. Super. 370 (App. Div. 1988); the "black hole" case. Once a divorce has been initiated, there no longer exists an elective share. However, equitable distribution cannot occur until the divorce is concluded. In the above-mentioned case, death of one of the parties occurred during the pendency of the divorce. To cure the black hole problem, the court fashioned a constructive trust. Aren't you currently represented by counsel?

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Andrew A Bestafka

Andrew A Bestafka


Hey Curt, what if Def voluntarily defaulted after having signed a PSA and then passed?


The answer is: "It depends."

First of all, if you don't have a Will, you should prepare one right away. If you have a Will but it leaves everything to your wife, you should change your Will or do a new one right away.

Your Will needs to leave your assets to the people who YOU want to get them if you die before the divorce is final and there is either an Agreement or a Court Judgment regarding their distribution.

****Keep in mind that all assets which are titled the joint names of your wife and you will NOT pass through the Will unless you hold those assets as "joint tenants in common" as opposed to joint tenants with right of survivorship or tenants by the entireties. Instead, they pass by operation of law to the surviving joint owner).

However, also keep in mind that doing a Will does NOT guarantee that, if you die before the divorce is final and there is either an Agreement or a Court Judgment regarding the distribution of the assets, your assets will go to the beneficiaries named in your Will.

Although distribution of assets (called "equitable distribution" in New Jersey) is a statutory remedy which is ONLY available in a divorce case upon the entry of a Judgment of Divorce (which means that if you die before that it is NOT available), the Family Court DOES have the power to grant equitable relief in "exceptional circumstances" when a party dies during a divorce case.

That equitable relief can be granted at the request of the representatives of your wife's Estate.

Hopefully, you are represented in the divorce case by a very experienced lawyer who devotes his/her practice to New Jersey Divorce and Family Law matters.

If not, I strongly recommend that you meet as soon as possible with such a lawyer. Go over your situation in detail with the attorney, get educated answers to your questions, and obtain expert guidance as to the best course of action. In my opinion, it will be well worth the cost of the meeting.

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The other attorneys have provided strong feedback to your question. I will simply add that it is imperative that you cover your bases by (a) preparing a new Will clearly indicating how you want your assets (or share of assets from equitable distribution) to be distributed, including removing your spouse from a share of the estate and (b) ensuring your legal counsel is well versed in matrimonial law to take the necessary steps to try to protect your interests in your divorce proceedings and put a stop to the delay tactics.

My primary practice area is divorce and family law but I also do estate work.

Please note that this response is provided based upon the limited information set forth in the question and should not constitute legal advice, especially as there is no attorney-client relationship established herein.

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My colleagues have given you a very thorough explanation of how this all works. There are equitable distribution issues that impact as well as probate law issues. You need to consult a lawyer to guide you through the issues. You also need to make sure you have a new will of your own and that same lawyer should be able to help as well.

The content of the this submission is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This submission is not a substitute for legal advice. Should you require such services, retain competent legal counsel.

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