Death and Divorce in New Jersey

By , Attorney

Overview of New Jersey Divorce

If you obtained a divorce in New Jersey and receive child support payments and/or alimony payments under the divorce decree, it's important to understand whether those payments and support end upon your spouse's death and what rights you may have against your spouse's estate. Also, upon an ex-spouse's death, some interesting issues can arise regarding child custody and payment of retirement or pension benefits.

How Does my Ex-Spouse's Death Affect Support?

Various types of support may be ordered in a New Jersey divorce. Those can include child support, alimony or spousal support. The various types of support are affected differently by a payor spouse's (spouse who is paying support) death.

What happens to alimony when the payor spouse dies?

Alimony in New Jersey automatically terminates upon one of the following events:

  • the supported spouse remarries
  • the supported spouse begins to cohabit (live) with a new boyfriend or girlfriend
  • the duration specified for alimony comes to an end
  • the payor spouse dies, or
  • the supported spouse dies.

However, even though alimony terminates upon the payor spouse's death, any arrearages (back payments) must be paid by the estate. In other words, if at the time of death the payor spouse had failed to make certain monthly alimony payments, then the surviving spouse could file a claim against the estate to obtain reimbursement for alimony that was owed but never paid before the payor's death. The executor of the estate would be legally obligated to pay any alimony owing to the surviving spouse from the assets of the estate. Nevertheless, even if the deceased spouse's estate had many assets, there is no legal obligation for the estate to make future alimony payments to the surviving spouse. Under the divorce agreement, the spouses can agree to have alimony continue for a period of time following the payor spouse's death. But, in the absence of such a provision, alimony will automatically terminate upon death.

Does child support terminate if the payor parent dies?

Unlike alimony, child support does not automatically end simply because the payor spouse dies. Nevertheless, where this may become a complicated issue is when the deceased has children from multiple marriages, each vying for a slice of the estate. New Jersey courts have held that that a court has the power to enter a child support award for a child that survives their father's or mother's death. See, Grotskey v. Grotskey, 58 N.J. 354 (1971). Thus, continuing payments of child support would come from the deceased spouse's estate.

Who Gets Custody of My Children if Ex-Spouse Dies?

If one parent dies during or after a divorce, custody can become a hotly contested issue between grandparents and the surviving parent. In New Jersey, there is a presumption (general belief that must be disproven) that the surviving parent should be awarded custody of the children. Nevertheless, in these types of circumstances, grandparents may seek custody of their grandchildren.

In certain situations, the grandparent or the state of New Jersey can prevent children from living with the surviving, biological parent by showing it would not be in the children's best interests for reasons including:

  • abandonment
  • neglect
  • physical or emotional abuse, and
  • criminal activity.

Nevertheless, these situations are rare, and the general presumption is that the surviving parent should have custody of the children upon the custodial parent's death.

What Happens to Pension and Retirement Benefits After Ex-Spouse's Death?

A pension which is earned or accrued during the marriage is considered "marital property" - property that is owned by both spouses jointly and is typically divided equitably (fairly) between spouses in a divorce. Even if a pension doesn't vest and/or retirement would not be paid until after the divorce, New Jersey courts will still award a portion of those benefits to the other spouse in a divorce as long as the benefits were acquired during the marriage.

Even after the divorce is final, if the ex-spouse who earned the pension (or retirement) dies before the benefits vest, the other spouse will still be entitled to those benefits as long as that award was spelled out in the couple's divorce decree and the appropriate pension and retirement orders were entered during the divorce. For example, you may need a QDRO (Qualified Domestic Relations Order) to divide certain retirement benefits in your case.

The laws dealing with the division and distribution of pensions and retirement benefits are technical and complex. You will need professional help in order to make sure this is all done correctly. For more specific information on this topic, you should speak with an experienced family law attorney in your area.

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