For many years, family law practitioners participated in discussions regarding the “Black Hole” that existed as a result of a spouse dying after a complaint for divorce was filed. Pursuant to New Jersey law, in the event one party died after the complaint for divorce had been filed but prior to the entry of the Final Judgment of Divorce, the matrimonial proceeding would abate, and the Family Court no longer had jurisdiction over the matter. In that event, the law benefited the surviving spouse because instead of receiving a percentage of the marital assets as part of the divorce proceeding, that party would receive all of the joint assets from the marital estate.
There was a distinction, however, in a situation where the parties did not have any joint assets and the decedent did not name the surviving spouse as a beneficiary in his/her Last Will and Testament. If a spouse died without a Will, the surviving spouse was entitled to an intestate share which was based upon the value of the estate and the existence of other close relatives of the decedent. Pursuant to New Jersey estate law, the filing of the divorce precluded the surviving spouse from an entitlement to an intestate or elective share of a spouse’s estate. If the decedent had a Will that attempted to disinherit the surviving spouse by not leaving them any assets, the surviving spouse could receive no assets because the spouse was not entitled to either the equitable distribution of the assets because the matter ended, or a share of the decedent’s estate. This situation was referred to as the “Black Hole.”
The New Jersey Supreme Court case of Carr v. Carr was decided in 1990. In Carr, the husband died during the divorce proceedings. There were no joint assets, and in his Will, he left his entire estate to his children from a prior marriage. The New Jersey Supreme Court held that the only way the wife could claim any of the marital assets was through the creation of a constructive trust. The wife was precluded from receiving an elective share of the husband’s estate due to the pending divorce and was also precluded from receiving any assets under the equitable distribution statute because the husband’s death ended the divorce case. The Court utilized a constructive trust on the decedent’s assets to ensure that the surviving spouse was able to advance equitable arguments to make claims for the marital assets.
In 2024, the legislature enacted a law that resolves the conflict between equitable distribution and estate statutes. The statute protects the rights of surviving spouses to authorize the Family Court to continue handling asset distribution after one spouse dies during a divorce, while lso preventing the surviving spouse from claiming an intestate or elective share of the decedent’s estate. This closes the previously described Black Hole” in the law, where the courts had unclear jurisdiction when a divorce was pending and a party passed away.
In addition to the estate law being modified, the equitable distribution statute N.J.S.A. 2A:34-23 was amended with a new paragraph, (h)(2). The revised statutory language provides:
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- If a complaint not dismissed pursuant to R. 4:6-2 of the Rules of
Court has been filed for an action under paragraph (1) of this section,
and (a) either party to the litigation dies prior to the entry of the final
judgment, or (b) if the parties had and remained entered into a
validly executed equitable distribution cut-off agreement,
termination agreement, or marital settlement agreement where the
underlying subject matter of the agreement is divorce, dissolution of
civil union, termination of domestic partnership, or divorce from
bed and board at the time of death of the decedent occurring prior to
the entry of the final judgment, the court’s authority to effectuate an
equitable distribution of the property shall not abate. Pursuant to
subparagraph (a)(3) of R. 4:3-1 of the Rules of Court, all such
matters shall be filed and heard in the Family Part of the Chancery
Division of the Superior Court.
- If a complaint not dismissed pursuant to R. 4:6-2 of the Rules of
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This amendment to the equitable distribution statute authorizes the Family Court to effectuate post-death equitable distribution and eliminates the “Black Hole.”
If you or someone you know is involved in a matrimonial proceeding and has concerns regarding the impact of a potential death during the proceeding or has a spouse who died after the filing of the Complaint for Divorce, contact the experienced family law team at Cohn Lifland for legal guidance to determine the best manner in which to proceed.