Appellate Division Reaffirms Personal Representative of Estate Can Pursue Equitable Distribution in Divorce Action
In re Estate of Burke, Docket No.: A-1493-25, 2026 WL 1860806 (N.J. Super. App. Div. June 29, 2026)
The dispute arose after Agnieshka Burke (“Decedent”) died on August 14, 2024, five months after filing for divorce from her estranged husband, Jared Burke (“Jared”), and before any final judgment of divorce was entered. The Decedent’s will had been executed before the divorce filing. The will was admitted to probate and letters testamentary issued to Jared, with the Decedent’s sister, Katarzyna Kostro (“Kostro”), named successor executor.
Kostro filed a caveat and a complaint in the Probate Part seeking to revoke Jared’s appointments and distributions, to have him declared conflicted out as executor of the Decedent’s estate because of the pending divorce, to appoint herself as executor, and to have the proceeds of the Decedent’s $500,000 term life insurance policy treated as marital property subject to equitable distribution.
Jared argued to confirm his appointment and rights. Separately, in the Family Part, Kostro sought appointment as personal representative to continue the divorce action, and the court entered an order on October 1, 2024, enjoining the transfer of marital assets and requiring the insurance proceeds to be held in trust.
After cross-motions for summary judgment, the Probate Part denied both motions and entered an order that (1) held N.J.S.A. § 2A:34-23(h)(2) permits an estate’s personal representative to pursue equitable distribution in the Family Part, (2) found Jared had a conflict of interest disqualifying him as executor for purposes of equitable distribution, and (3) referred the life insurance question to the Family Part.
The Appellate Division granted leave to appeal.
On the central statutory question, the Appellate Division affirmed the ruling that N.J.S.A. § 2A:34-23(h)(2) allows a deceased spouse’s estate, through its personal representative, to seek equitable distribution when one party dies during a pending divorce (i.e., before final judgment of divorce). The Appellate Division reasoned that equitable distribution ordinarily arises only on entry of a divorce judgment and that divorce actions abate on a party’s death, but that the New Jersey Supreme Court in Carr v. Carr, 120 N.J. 336 (1990), had recognized equitable remedies — such as a constructive trust — to prevent unjust enrichment when a spouse dies during divorce proceedings, and that Kay v. Kay, 405 N.J. Super. 278 (App. Div. 2006), extended that equitable protection to the estate of a deceased spouse asserting a like claim.
The Appellate Division held the statute’s plain language authorizes equitable distribution for either party to the matrimonial litigation, consistent with Carr and Kay, and rejected Jared’s argument — drawn from the amendment’s legislative history and committee reports — that subsection (h)(2) protects only a surviving spouse and not an estate.
Moreover, the court found nothing in the legislative materials that overruled Kay or supported limiting the remedy to surviving spouses, and observed that Jared’s reading would leave an estate with no remedy to which it was otherwise entitled. The Appellate Division also rejected the contention that the ruling created a free-floating property right or improperly nullified § N.J.S.A. 3B:3-14 (automatic revocation of transfers on divorce), noting that the statute merely codified the pre-existing constructive-trust right under Carr and Kay and that N.J.S.A. § 3B:3-14 by its terms allows court orders and governing-instrument terms to prevent automatic revocation.
Moving to the conflict-of-interest issue, the Appellate Division affirmed that Jared was disqualified from serving as executor with respect to equitable-distribution disputes, while emphasizing he was not removed as executor entirely. Applying the principle that a conflict between an executor and estate beneficiaries can warrant removal, the Appellate Division reasoned that Jared could not simultaneously represent the estate’s interest in seeking equitable distribution and his own opposing personal interest in that same matrimonial litigation. The Appellate Division emphasized the conflict was not hypothetical because Kostro had already filed to pursue equitable distribution on the estate’s behalf. However, the Appellate Division found that the trial court’s failure to appoint a substitute executor undermined the purpose of subsection (h)(2) and risked prejudice to the estate, and it therefore remanded the case to the Probate Part to appoint a substitute executor — for the limited purpose of representing the estate in equitable distribution matters.
Finally, the Appellate Division affirmed the referral of the life insurance dispute to the Family Part, pending appointment of the substitute executor. It recited the general rules that life insurance proceeds are non-probate assets passing by contract, that a beneficiary designation is a non-probate transfer, and that beneficiaries generally change only by writing, subject to the substantial-compliance doctrine. Given the Family Part’s expertise in family matters and the need for a fuller record, the Appellate Division held that forum should resolve the competing claims to the proceeds, while emphasizing that Jared remains the named beneficiary and that nothing in the record showed the divorce was finalized or a settlement agreement existed sufficient to trigger automatic revocation of his designation under N.J.S.A. § 3B:3-14. The Appellate Division directed the Family Part, after appointment of a substitute executor, to enter findings on distribution of the proceeds and whether removing Jared as beneficiary is appropriate. The Appellate Division accordingly affirmed in part and remanded in part.