To what extent will a court of equity protect the estate of a party who dies during divorce proceedings? In light of the Appellate Division’s Dec. 5, 2018, decision of Nildia Acosta-Santana v. Cesar A. Santana, A-5646-16T4, a myriad of questions have arisen for both matrimonial and estate planning attorneys with respect to counseling a client in order to insure the client’s testamentary intent is accomplished should the client die during the divorce proceedings.

Santana involved the defendant husband dying during the divorce proceedings while the marital settlement agreement was still being finalized. The parties had been married for 25 years when wife filed a complaint for divorce in September 2015.  In June 2016, during the pendency of the litigation, husband executed a will, in large part leaving his estate to his children, naming his brothers and sister-in-law as contingent beneficiaries, and naming his brother as his executor. Although Mr. Santana was seriously ill, during the fall of 2016 he was feeling better and his death was not imminently expected. In October 2016, while the parties were circulating a draft property settlement agreement whereby they would each receive 50% of the marital assets, but before an agreement was reached and executed, Mr. Santana died.

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