Divorce and Death

The death of an ex-spouse can be devastating both emotionally and also financially. By asking the questions to an experienced  NJ divorce lawyer of how an ex-spouse’s death might affect child support, alimony, and other issues related to a divorce in New Jersey, a couple going through a divorce can better prepare for the financial blow that a death can have on a family.

Alimony (also called spousal support) is financial support that one ex-spouse pays to the other. In a New Jersey divorce, alimony payments will typically end when a certain event occurs. Those events include:

1. The expiration of the specified time period of support payments, or
2. If the supported spouse remarries, or
3. If the supported spouse cohabitates with another romantic partner, or
4. If either spouse dies

In the case of the death of the spouse who paid the alimony, the payment of alimony will end when that spouse dies. However, if the paying spouse was not current on alimony payments, or owed the supported spouse alimony payments, the supported spouse may make a claim against the estate of the paying spouse for the amount of support owed. Note that in a divorce the parties may agree to have alimony payments continue after death, however this is the exception and not typical.

Child support, unlike alimony, does not end with the death of the paying spouse. Ongoing child support payments may be made from the estate of the deceased parent to the child, if funds are available and certain conditions are met. This is a complicated issue and will vary by the circumstances of each case, so it is best to consult a NJ divorce lawyer if you are in this situation.

The death of an ex-spouse who supports his or her ex-spouse or children through alimony or child support payments can be devastating to the financial well being of the family. For this reason, many divorce judgments require ex-spouses to obtain life insurance to ensure the continued payment of support in the event of a death.

It is important to update any estate planning documents including wills and trusts in the event of a divorce to make your final intentions clear. Under New Jersey law, a surviving spouse (not ex-spouse) can receive an “elective share” of one-third of the estate of his or her spouse. The elective share means that a spouse cannot be disinherited, although the parties can agree to forego the elective share in a prenuptial agreement.

Under New Jersey law, the elective share is not available to a surviving spouse if at the time of death the couple did not live together or ceased to cohabitate as husband and wife or have not been living in the same habitations as the result a of judgment of divorce from bed and board or under conditions which would have given rise to cause of action for divorce or nullity of marriage.. The elective share is also therefore unavailable to an ex-spouse.

New Jersey law presumes that the proper custody of a child is the surviving parent in the event of another parent’s death. In some cases, such as in the case of the surviving parent having abused, abandoned, or neglected the child, or criminal history or substance abuse history prevents the surviving parent from adequately caring for the child, the grandparents or other family members may seek custody of the child.

If your ex-spouse has passed away and you have questions about how that will affect you, please call Peter Van Aulen a NJ divorce lawyer at 201-845-7400 for a free initial consultation.

N.J.S.A. 3B:8-1 - Elective Share of Surviving Spouse of Person Dying Domiciled in This State

Watkins v. Nelson, 163 N.J. 235 (2000) – Child custody on death of parent