Suppose a couple is married. Then one spouse files for divorce. Now let’s say the second spouse (who did not file for divorce) dies suddenly. Does the surviving spouse — who is technically still the spouse, but was the soon-to-be ex-spouse — inherit the estate?

Prior to the adoption of The Uniform Probate Code Intestate Statute of 2005, if a spouse died intestate, the surviving spouse was entitled to $50,000 plus half of the remaining estate, while the remainder of the assets passed to the children. Most states, including New Jersey, have adopted the new intestacy statute, which states that if a spouse dies without a will, all of the assets, marital and non-marital alike, pass directly to the surviving spouse. In the case of a pending divorce, this can become complicated.

Here are a few legal implications to consider:

A spouse who dies with a valid will that directs assets to the surviving spouse but is in the process of divorcing is in the same position as if the person had died intestate.

As long as the divorce is not final, the divorcing spouse can petition the court to be considered the surviving spouse rather than the former spouse and therefore inherit the estate.

Probate judges usually consider the intent of the decedent in the case of a person dying intestate — in accordance with the new statute, even if it was clearly not the intent of the decedent, the former spouse is likely to inherit the assets.

If a couple has been living separately for a substantial amount of time, even if the divorce is still pending, the surviving spouse does not have the right to equitable distribution.

Once a divorce is final, the intestacy rights of a former spouse are automatically canceled.

There have been a few cases in New Jersey that established some precedent, such as Fulton v. Fulton in 1985. In this case, the court awarded the divorce posthumously to avoid the issue entirely.

If you are divorcing or considering divorce, speak to your divorce attorney about updating or revising your will. The attorneys at Murano & Roth, LLC are available to all New Jersey residents. Call 201.265.3400 or contact us online.

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By Jason D. Roth