This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.
The New Jersey General Assembly approved A2351 (Mukherji)/2991 (Singleton), an NJSBA-drafted bill. The measure would permit a court to effectuate equitable distribution when a complaint for divorce or dissolution of a civil union has been filed and either party dies prior to the final judgment. The Association wrote the bill following a robust discussion among members, particularly in the Family Law and Elder and Disability Law sections.
“The NJSBA worked collaboratively with stakeholders, including elder law attorneys, trust and estate attorneys, and the New Jersey Law Revision Commission to address this issue,” said the NJSBA in written remarks to the Assembly Judiciary Committee. “This legislation will simply provide a remedy for the division of the deceased spouse’s property.”
The legislation stems from the Appellate Division’s decision in In the Matter of the Estate of Arthur Brown, Deceased, 448 N.J. Super. 252 (App. Div. 2017). In that case, the surviving spouse tried to disclaim an elective share of the deceased spouse’s estate, thus upholding a lien on the estate for reimbursement of Medicaid benefits received. Proponents of the disclaimer of the elective spousal share argued that the couple was living separate and apart, such that they were no longer husband and wife, and therefore they were ostensibly divorced. However, the basis for the separation was not a deterioration of the marriage, but rather because one spouse suffered from Alzheimer’s disease. The Appellate Division held that this did not support grounds for divorce and therefore Arthur Brown was not excepted from his elective share of his wife’s estate.
This decision resolved a longstanding debate among estate attorneys and family law attorneys on this issue. “This holding resolves an important issue regarding these matters where a spouse dies prior to a final judgment of divorce and the surving spouse is left without any entitlement to the deceased spouse’s estate,” said the NJSBA.
The bill is pending in the Senate Judiciary Committee, and the NJSBA will continue to monitor its progress.