Let’s say that you are finalizing a divorce, and as part of finishing your divorce, you sign a marital settlement agreement (MSA). That MSA requires your spouse to pay you certain amounts and perhaps provide you with certain physical assets for a specified period of time.

However, before all the payments can be made, your (now ex) spouse passes away. Your spouse leaves most, if not all, of their assets and money to people other than you.

Do you have a right to make a claim on the assets of your ex-spouse’s estate in order to fulfill the financial obligations your ex-spouse promised in the MSA?

Conflict Between Your MSA and the Will

You now have a conflict: What takes priority, the wishes of your ex-spouse as stated in their estate documents (such as a will) or your claim to the property or assets promised to you in the MSA?

The good news for you is that most courts have said that your MSA (or other documents which may provide you a right to property, alimony, or other assets related to your divorce) will take precedence over whatever your ex-spouse puts in their estate plan.

Going to Probate Court

The bad news is that to get those assets, you are treated like any creditor in the probate action (such as a mortgage company or credit card company that may have been owed money) filed when the deceased spouse passes away. You will have to follow the timelines and guidelines in the probate court that every creditor follows in order to preserve and enforce its claims on the assets of the estate.

The estate, through the relatives of the deceased, can fight you on what you say you are owed via the MSA. But your claim to enforce the MSA asserted in the probate court, will hold up the distribution of those assets to the deceased’s family, who are supposed to get those assets pursuant to your deceased spouse’s wishes (or by state law if there was no estate plan ever created). This can make those beneficiaries very willing to try to resolve what is owed to you, as until your claim is settled, they will not get whatever was left to them.

Drafting the MSA

To ensure and guarantee payments, you should include, as part of your MSA, language that specifically says that things like accrued unpaid alimony will not terminate on death.

You also may want to make clear in your MSA that property division is in the nature of support, as support obligations, like alimony or child support, get more priority and more special treatment than the simple division of property (and have the added benefit of not being able to be discharged in bankruptcy).

Contact our New Jersey family law and divorce attorneys at The Law Office of Agnes Rybar LLC today with questions about resolving your divorce and protecting you when your divorce is over.





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