If one of the individuals dies prior to the filing of the complaint for divorce, or after the complaint has been filed, but before a final judgment of divorce has been entered by the court, the surviving spouse is, despite the intent of the parties to be divorced, still married to the deceased spouse.
The courts in New Jersey have noted this issue in several cases over the years, but the Legislature has done nothing to address the issue. Why?
If during the loving stage of their marriage a husband and wife have an attorney create wills naming each other as a beneficiary of their respective wills, and they designate each other as the beneficiary of their IRAs, retirement benefits, and/or insurance policies, they have the ability, upon separation, to visit a new attorney (the old one has a conflict of interest) to have new wills, powers of attorney, and durable medical directives drafted. They also have the ability to change beneficiary designations. If they fail to do so, it is assumed (rightly or wrongly) that they still wish the survivor is to be the designated beneficiary.
Under our laws, and the laws of the vast majority of states, a surviving spouse has a power known as the “right of election.” In New Jersey it is codified in N.J.S.A. 3B:8-1. This right gives a spouse who is unhappy with what was bequeathed to the survivor by the deceased spouse, or who was left nothing, to elect against the deceased spouse’s will (or revocable trust), and to claim an amount as described in the statute. [It is to be noted that since New Jersey recognizes domestic partners and civil unions, the same statute grants a domestic partner or partner of a civil union this same right of election.] Because this is a right granted the survivor, and can be exercised after the death of the deceased spouse or partner, which is no doubt contrary to the intent of the decedent, especially if the will and other documents were in fact changed while the parties were separated, the statute specifically provides that the surviving spouse or partner loses the right of election.
It is the power to take an affirmative step to change their testamentary intent during life that differs from the right of election; a power held by the survivor and that can exercised contrary to the intent of the deceased spouse/partner that justifies the different treatment by the Legislature and the courts.
While this writer differs with this train of thought, and believes that spouses (and partners of a civil union) who have separated should have to file a new will or other document(s) to affirm the intent that the existing spouse should remain a beneficiary of IRAs, insurance and under a will, as noted, this is not the law. It is therefore critical to see an estate planning attorney after visiting a matrimonial/family law attorney to discuss a divorce.