By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Probate Estate Litigation Attorney

The case of Carr v. Carr, decided by the New Jersey Supreme Court in 1990, tackles a legal issue never considered by the legislature.  What happens when a divorce proceeding is pending, and one spouse dies?  Does the divorce end? Does the other spouse get to claim a property right and alimony right against the estate?  Is the other spouse out of luck and not entitled to anything?

In this case the husband and wife were married for seventeen years.  The husband left the wife after 17 years of marriage.  A year passed, and the wife filed for divorce on the grounds of desertion.  Trial was set three years later after a long discovery period and substitutions of attorneys for the husband.  The trial was adjourned because the husband was hospitalized, and five days later, he died.  His estate left everything to his children, so the wife filed for an elective share claim and for equitable distribution of the marital assets.  Both motions were denied by the lower courts.

The Supreme Court agreed with the lower courts.  It held that equitable distribution can not be awarded until there is a judgment of divorce between the parties.  As for the elective share issue, it correctly pointed out that the desertion of the husband from the wife was not subject to an elective share claim, since the separation between the two spouses created circumstances that warranted a judgment of divorce.

After making those two holdings, the court proceeded to explain the theory behind the equitable distribution laws.  Marital property is joint property held by the spouses, and each spouse makes a significant contribution to the marital enterprise.  Each spouse is equally entitled to marital property during divorce. This theory is the backbone behind our elective share and equitable distribution laws.   So if the wife cannot sue for her elective share she is entitled to equitable distribution because the husband died. The court held it would be unjust for her not to have a claim in the marital property.

The court therefore imposed a constructive trust upon the husband’s estate.  Constructive trusts exist in the world of equity, and are usually in place when somebody unjustly enriches himself or herself and is ordered to give money back to his or her victims.  An example of this is a person acting as a fiduciary and cutting huge checks to himself/herself without authorization.  The beneficiaries of the trust can ask the court to impose a constructive trust so they can collect what is rightfully theirs.  In this case there was nothing maliciously intended yet the court here ordered the marital property to be subject to the principles of a constructive trust and not distributed until the wife had had a chance to show what was marital property and what was not, and then an award would be made for her to receive half of that property.

This case is an example of where the court constructs an equitable remedy when there is no relief otherwise.  The Court went into the common law that existed before there was even a New Jersey Legislature and fashioned a remedy that allowed the wife to a portion of the marital property she was entitled to, while leaving the rest to the husband and the husband’s children.  Some might argue that this is judicial overreach.  But the logic of marital property law is sound.

To discuss your NJ Estate and Probate matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.