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What Is a 'Black Hole' Case?

New Jersey statute (N.J.S.A. 3B:8-1) guarantees a married individual a share of their spouse's assets upon that spouse's death (elective share). Separately, N.J.S.A. 2A:34-23 also guarantees divorcing spouses the right to fair distribution of marital assets upon divorce (equitable distribution). Once a married person commences divorce litigation, however, the right of both spouses to an "elective share" of a decedent spouse's assets is terminated by law; yet, if a spouse passes away while divorce litigation is pending, current law also deprives the surviving spouse the right to equitable distribution of marital assets. Thus, a spouse's death during divorce litigation precludes the surviving spouse the benefit of both the "elective share" and "equitable distribution" of marital assets, leaving the surviving spouse in a legal "black hole" as to the decedent spouse's assets.

In response to several decades of litigation in "black hole" cases, the New Jersey Assembly recently passed Assembly Bill A2351 on Oct. 27, 2022. The bill intends to solve the legal conundrum by permitting courts to effectuate equitable distribution of assets in pending divorce matters despite the death of a divorce litigant. The bill also reaffirms that a divorcing surviving spouse is not entitled to an elective share of a decedent spouse's estate. Bill A2351 moved to the Senate as Senate Bill S2991 on Nov. 3, 2022, where it is presently pending in the Senate Judiciary Committee.

Early 'Black Hole' Litigation

In one of the earlier, more notorious "black hole" cases, Jacobson v. Jacobson, 146 N.J. Super. 491 (1976), a husband allegedly killed his wife while their divorce was pending. The husband moved to abate the divorce in its entirety, including the wife's claims for equitable distribution and alimony. While the court granted abatement for the divorce cause of action and alimony claim, it added the wife's estate to the divorce litigation and declined to dismiss her claim for equitable distribution. In so doing, the court invoked the equitable maxim that a "wrongdoer should not profit by his own wrong." While Jacobson is the most infamous case on this particular topic given the murder, it is important to highlight the court's emphasis on the extraordinary circumstances in applying the equity maxim to permit the divorce matter to continue for purposes of litigating the equitable distribution claim after the death of a divorce litigant.