As matrimonial attorneys, we often face many new and complicated fact patterns or legal issues that often times could not have been anticipated. Whether it is litigating custody in the middle of a pandemic, or the unfortunate circumstance of having a spouse pass away before the entry of a judgment of divorce – no two divorce cases are the same.

We have blogged extensively about custody and visitation battles that have occurred throughout this pandemic. But what about the other issues that have become unfortunate consequences of this pandemic? Sadly, the country has seen well over 500,000 people pass away. Those individuals had families, lives, careers, friends, the list goes on. Unfortunately, some of those individuals that passed may have had divorce proceedings pending. Some may have even settled those divorce proceedings and were merely waiting for the entry of a judgment of divorce. This blog post will address the legal ramifications of a party’s death after the parties enter into a stipulation of settlement, but before a judgment of divorce in New York.

Some of you may be asking, why is this even important? Well, in many divorce agreements, spouses give up certain rights that they would be entitled to upon the death of the other spouse.  For example, a spouse in New York can contest a will and seek to inherit a certain percentage or amount of assets from the deceased spouse’s estate. Or, let’s say the deceased spouse doesn’t have a will, the surviving spouse will be entitled to receive assets from the estate.[1] So, how does this relate to divorces? Well, technically, even after spouses execute a settlement agreement, distributing assets, setting maintenance and child support obligations, etc., they are not divorced. In fact, parties are not officially divorced until a judge has signed the Judgment of Divorce. So, if a spouse dies after the execution of a settlement agreement, but before the judge signs the judgment of divorce, technically the spouse died as a married individual.  As a result, issues surrounding the deceased spouse’s estate may arise that may not have otherwise existed.

So what can be done? Well, it turns out this issue is not a new one. It did not arise with the onset of the Covid-19 pandemic and will not end when the pandemic does. Case law out of this state has made it clear that courts can sign and enter a judgment of divorce after the death of a spouse if all other issues have been resolved (grounds for divorce, equitable distribution, maintenance, child support, custody, etc.) and the only remaining issue is ministerial, i.e. signing the judgment of divorce. This is because if all issues of the divorce have been resolved prior to the death of a spouse, technically a judgment of divorce would have been able to be entered while both spouses were living.

The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. Readers of this article should seek specific legal advice from legal counsel of their choice. Samantha Guido can be reached at 516-393-8250 or sguido@jaspanllp.com.

[1] Please note that this discussion of estates and a spouse’s rights under New York Law to inherit assets from their deceased spouse is in general terms. All estate litigation cases are different and any individual who may have a question regarding estate planning, contesting a will, or any other question regarding wills, trust, etc., should seek advice from a trusts and estate attorney of their choosing. Nothing in this blog post is meant to be legal advice to you.