Detailed answer — how New Jersey law treats a not-yet-final divorce

Under New Jersey law, marital status at the moment of death determines spousal rights in probate and intestacy. A filing for divorce, living apart, or extended separation does not by itself end the legal marriage. Until a final judgment of divorce or an annulment is entered, the parties remain legally married and the surviving spouse retains the rights that come with that status.

Key rights the surviving spouse may have in New Jersey include:

• Intestate share: If the decedent died without a valid will, the surviving spouse typically takes either all or a large portion of the estate under New Jerseyintestacy rules. These rules allocate property based on who survives the decedent. (See New Jersey statutes and the Surrogates Court pages for details: New Jersey Statutes and NJ Courts: Surrogate’s Courts.)
• Right to take against a will (elective/share protections): Even if the decedent left a will that reduces or disinherits the spouse, New Jersey law provides statutory protections allowing a surviving spouse to claim a forced or elective share of the estate. A spouse who was still legally married to the decedent when the decedent died can typically exercise those rights.
• Family allowance, homestead, and exemptions: Surviving spouses may be entitled to temporary family allowance or homestead protections to support themselves while the estate is administered.

Exceptions and important nuances

• Final divorce judgment or annulment: If the divorce is legally final before the decedents death, the ex-spouse generally loses spousal inheritance and elective-share rights (unless other law or agreement provides otherwise).
• Separation agreements or waivers: A valid separation agreement, prenuptial/postnuptial agreement, or other signed waiver that specifically and validly relinquishes spousal rights (including elective share) can alter or eliminate a spouses claims. Courts scrutinize these documents for validity.
• Pending divorce with final judgment entered before death: If the divorce had effectively been granted (a final judgment entered) before the death, the surviving spouse will not have spousal claim rights based on that prior marriage.
• Claims by third parties: Children, creditors, and others also have probate rights that interact with a surviving spouses claims. Executors must follow the statutory scheme and Surrogates Court procedures.

Practical consequences for executors, heirs, and the estranged spouse

1. Executor duties: The person appointed as executor must identify the decedents marital status at death, locate any will, provide notice to statutory heirs (including a surviving spouse), and follow Surrogates Court rules. Executors must not distribute estate assets until proper notices and claims are resolved.
2. For the estranged spouse: If you are the surviving spouse and the divorce was not final, you should contact the executor or the Surrogates Office promptly to learn how to assert your rights. You may be able to elect a statutory share, ask for family allowance, or contest the will if necessary.
3. For children or other heirs: If you expected to inherit and an estranged spouse is now asserting claims, you should consult a probate attorney and use the Surrogates Court process to resolve competing claims.

Where to look in New Jersey law and court resources

New Jersey statutes addressing administration of estates, intestate succession, and spousal protections are collected in the New Jersey statutes and implemented through the Surrogates Courts. Start with the New Jersey Legislatures statutes page and the NJ Courts Surrogate pages for local rules and forms:

• New Jersey Statutes (searchable)
• New Jersey Courts: Surrogate’s Courts and probate resources

Because statutes and procedures can be technical and time-sensitive, consider consulting a New Jersey probate or estate attorney promptly to protect rights and meet deadlines.

Helpful hints — practical steps and tips

• Confirm marital status at the exact time of death: the official date of death controls legal status.
• If you are the executor, do not distribute assets until you confirm whether a surviving spouse will assert claims.
• If you are the estranged spouse, contact the executor and the Surrogates Office immediately to learn how to assert an elective share or other statutory rights.
• Look for any signed separation, prenuptial, postnuptial, or waiver documents that might affect spousal rights; provide them to counsel or the Surrogates Office.
• Keep records of communications about divorce, separation agreements, and any court filings—these can affect outcome and timing.
• Deadlines matter: courts and statutes impose time limits for filing claims in probate. Seek legal advice quickly.
• If in doubt, the Surrogates Office in the county where the decedent lived can provide forms and basic procedural information but cannot give legal advice.