In the recent case O’Hara v. Estate of John B. O’Hara, Jr., the Appellate Division reminded us that even though the death of a party to a marriage ends that marriage, it doesn’t always end the divorce. In Carr v. Carr, 120 N.J. 330 (1990), our Court examined what happens in the event that a party dies mid-divorce – after the Complaint has been filed, but before the divorce is finalized. You might think that when this happens, the case simply ends – after all, if one party passes away, what is the point of the divorce?
For better or worse, things aren’t so simple. If a party passes away mid-divorce, then the intent to divorce and to no longer be married has been expressed. If one party’s death mid-divorce would lead to unjust enrichment for either the deceased party’s estate or for the surviving spouse, the Court must see the divorce through. Otherwise, the surviving party might be unjustly enriched; what if he or she were to inherit everything in the deceased spouse’s estate, when the deceased party may not have wanted that? The converse could also be true. What if the spouse had specifically been provided for in a will, despite the divorce, but the bequest affords the surviving spouse less than (s)he would have gotten in the divorce case?
That latter is the issue at the center of O’Hara, where, in the midst of the divorce matter, the husband passed away. While the divorce was pending, but prior to his death, the husband executed a Last Will & Testament. The Will left the wife without any property interest in the marital assets, but created a trust for her benefit and support. The problem with this was that, in filing a Complaint for Divorce, the Wife had asserted her right to an equitable share of the marital assets. The trial judge permitted her to see that through by amending her complaint to include a claim against the husband’s estate. The Court concluded that “[w]ithout allowing the matrimonial matter to proceed to determine the value of the parties’ assets and what is available per equitable distribution, it will never be clear whether [the wife] received everything under the trust to which she is entitled, via equitable distribution.”
The Appellate Division affirmed. Skeptical of the husband, the Appellate Division found that the marital estate had to be valued, and the wife’s equitable interest had to be determined before it could be said that the benefits to the wife under the trust established by the husband did not deprive her of what she would have been entitled to under the divorce. Therefore, the lower court’s decision to impose a constructive trust – to effectively freeze the estate – was upheld and despite the death of one of the parties, the divorce litigation set to continue.