NJSBA Family Law Section

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  • 1.  Death of a Divorce Client

    Posted 10-14-2016 11:20 AM

    I had a divorce client die after filing of the divorce complaint. The spouse was served but has not filed a response in Court. It has been more than 35 days since he was served. My client had some jewelry on consignment, but I am not really aware of any other assets. The other spouse is demanding: 1) I return the remainder of the retainer; and 2) he wants the jewelry. To complicate matters the other spouse is under indictment and all property of the couple has been seized, except the jewelry she was selling and some other personality I understood the living spouse took. My client had very little at this point, was under a prior child support order.

    In all my years, I have never had a client pass away in the middle of a case. My questions, a) do I let the complaint get dismissed; b) do I amend the complaint to name the estate for purposes of the property and then enter default; c) do I need to do anything else?

    Any thoughts would be greatly appreciated. Thanks in advance.

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    Philip Burnham Esq.
    Marlton NJ
    (856)433-8655
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  • 2.  RE: Death of a Divorce Client

    Posted 10-14-2016 11:37 AM

    There is a NJ case involving a lawyer who failed to advise the trial court and adversary about the death of a divorce client. The lawyer proceeded as if the client were still alive.  The lawyer was disciplined for failure to disclose the client's death.

    The surviving spouse already knows of your client's passing. However, you should take no further steps to pursue divorce in a case in which you have no client.

    You can alert the heirs/devisees of their need to hire an estate lawyer and start a Probate proceeding, but that is as far as you should go.

    Hanan


    hanan.gif

    Hanan M. Isaacs, Esq.

     

    t 609.683.7400   f 609.921.8982

    e [email protected]   w www.hananisaacs.com

    4499 Route 27, Kingston NJ




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  • 3.  RE: Death of a Divorce Client

    Posted 10-14-2016 01:45 PM
    I think  the case Hanan is referring to is Kingsdorf v. Kingsdorf, 351 N.J. Super. 144 (2002).  You have an affirmative obligation to notify the Court of your client's passing.  That case also states that upon the death of a party, any claim on  that party's behalf must be asserted by his estate.

    In addition to alerting the heirs/devisees of their need to hire an estate lawyer and start a Probate proceeding, you may also want to alert them to their need to hire family law counsel so that they may substitute into the case per Rule 4:34-1(b) which provides for the substitution of non-party survivors for a deceased party.

    Good luck!

    Stephanie

    ____________________________

    Stephanie Palo, Esq.

    146 Route 34, Suite 325

    Holmdel, NJ 07733

    P: (732) 837-4544

    F: (732) 837-2328

    C: (732) 492-3124

     




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  • 4.  RE: Death of a Divorce Client

    Posted 10-17-2016 04:20 PM
    Philip -
    <x-tab>        </x-tab>I'm assuming no agreement had been signed.
    <x-tab>        </x-tab>If the litigation is going to continue, you need to substitute the estate of the client for the client. The issue (or one of the issues) becomes whether the spouse is entitled to inherit / take the elective share. Depending on the value of the property at issue - especially if the other party is going to have the assets seized, who is entitled to them (heirs or current spouse's creditor) is obviously important.
    <x-tab>        </x-tab>Check the cases citing Carr v. Carr - https://scholar.google.com/scholar_case?about=13209952974105480048 , they should get you to the answer pretty quickly.


    David Perry Davis, Esq.
    ------------------------------------------
       www.FamilyLawNJ.pro
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    112 West Franklin Avenue
    Pennington, NJ 08534
    Voice: 609-737-2222
    Fax:    609-737-3222



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