This is a question most divorcing spouses never consider, especially if they're relatively young and in good health.  It's also rather unpleasant to think about, regardless of how you feel about each other.  It is, however, important to understand your rights and legal options in the event that you or your spouse dies before the divorce is finalized.  For one thing, the basic concept that a marriage ends due to a spouse's death is not always true when there is a pending divorce.  

The court's main concern is that one party may be unjustly enriched or deprived, depending on the decedent's will.  If, for example, the will bequeaths everything to the other party, would that still be the decedent's wish based on the fact that he or she had filed for divorce?   On the other hand, if the other party had been bequeathed a specific portion of the estate, would that portion be significantly less than what he or she would receive from a divorce?

The second question is extremely significant in equitable distribution states like New Jersey.  As you are probably aware, equitable distribution is the concept of dividing things as fairly as possible, rather than the 50/50 distribution method used in community property states.  Once a divorce litigation is filed, the court's main concern in terms of property is that each spouse receives what he or she needs in order to maintain a decent quality of life.  Thus, if a will states that the spouse receives a very small portion of the estate, this would violate his or her right to an equitable distribution of the marital assets.  The same can be said for wills in which the surviving spouse inherits the entire estate.  That may not be fair given the circumstances within the marriage, which would reflect on the decedent's intentions towards the other party, given that he or she had filed for divorce.

The legality of concluding a pending divorce action prior to the distribution of an estate was recently made clear in O'Hara v. Estate of John B. O'Hara, Jr.  In this case, the parties were in the midst of a divorce when the husband died.  His will stipulated that the wife would not receive anything directly from the estate, but that a trust would be set up in order to provide her with financial support.  The court concluded that the divorce litigation would have to proceed “to determine the value of the parties' assets and what is available per equitable distribution.  Otherwise, it would be impossible to determine whether the wife received “everything under the trust to which she is entitled, via equitable distribution.”  The ruling resulted in the estate being frozen until the divorce matter was settled -- a decision that was upheld by the Appellate Division.

O'Hara clearly illustrates the importance of protecting a spouse's right to equitable distribution.  For more information on New Jersey's equitable distribution laws, please speak with the attorneys of Villani & DeLuca P.C.