Usually, when a spouse dies in the midst of divorce litigation, significant problems arise. The first is that upon the death of a spouse prior to entry of Final Judgment effectively terminates the divorce proceedings. See Carr v. Carr, 120 N.J. 336, 339 – 340 (1990). Thus, any right of the surviving spouse to equitable distribution under the divorce statute is extinguished. The result is that the surviving spouse is left to pursue his or her share of the marital assets through the probate code by way of exercise of elective share if he or she has been disinherited or the decedent was intestate.
The second problem arises in that the probate code explicitly denies the election share option to a surviving spouse if: (a) at the time of death the decedent and surviving spouse were living separate and apart in separate habitations; or (b) the decedent and surviving spouse had ceased to cohabit as man and wife as a result of circumstances that would give rise to a cause of action for divorce in New Jersey. N.J.S.A. 3B:8-1. Thus, the surviving spouse is left to pursue relief by way of a constructive trust under quasi-contractual law, which may be established by the Court as a vehicle by which equity may be accomplished.
If your spouse or civil union partner should pre-decease you immediately preceding the commencement of divorce/dissolution litigation or in the midst thereof, it is strongly advised that you seek the advise of an attorney to ensure that your property rights are upheld and you receive proper distribution of the marital assets.