21 Feb My friend’s ex died. Who has the right to his property?

Q. I have a friend who has six children. She was married to the father of two of the kids for about 10 years, and got divorced in 2018. About a year-and-a-half ago they started seeing each other, made a lot of big purchases including a house, three vehicles and tons of home furnishing items all of which were put in the husband’s name. Then he was arrested for domestic violence, at which time the wife and kids moved to her mother’s house. Then she found out he died. So all of a sudden, his family went to the house and took all the stuff and won’t let her into the house. They even want the car he has been driving. Is there anything she can do? Would a lawyer be able to help?
— Friend

A. This must be a very difficult situation for your friend.

Post-divorce reconciliations and cohabitation arrangements between unmarried individuals present a unique set of issues.

The specific answer to your question may very well depend on the additional facts, and consultation with an attorney may help to flush out those facts and more clearly define the available options.

The starting point may be the divorce settlement agreement, if one exists, said Thomas Roberto, a family law attorney with Adinolfi, Lieberman, Burick, Roberto & Molotsky in Haddonfield.

He said the divorce agreement may not include a provision addressing what would happen in the event of a reconciliation, for example, whether the terms of the agreement would continue to apply or be considered null and void, Roberto said.

If there is no divorce agreement, or if the agreement is silent on this point, the next question may be whether there was a cohabitation or palimony agreement, which is a written agreement between unmarried partners defining their rights to support and/or property distribution, he said.

The outcome of domestic violence proceedings may also merit inquiry, he said.

“If a restraining order was entered, support of the victim-spouse and/or children may be addressed in the restraining order itself as well as certain limited property-related issues,” Roberto said. “Whether or not any of these issues are addressed at all, and if so with any degree of permanence, would depend on the specific terms of the restraining order and the type of restraining order, such as whether it is a `temporary’ or `final’ restraining order.”

Whether the deceased former spouse died with a will, and if so, the specific terms of that will, is perhaps the most relevant consideration, Roberto said.

“If the minor children stand to inherit the assets acquired in their father’s name which he acquired post-divorce during the period of reconciliation with the children’s mother, that may resolve the issue,” he said. “If the children are minors, the mother as the primary custodial parent would likely oversee the inheritance until the children reach the age of majority.”

If no help can be found in the divorce settlement agreement, restraining order, or will of the decedent, the former spouse could attempt to pursue a claim against the deceased spouse’s estate, he said.

“If the former spouse made financial contributions toward the property acquired during the period of reconciliation, there may be a valid claim against the estate,” he said. “However, if the children are the beneficiaries of the estate, that may be a difficult action with which to proceed as it would essentially be litigating against the children.”

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This story was originally published on Feb. 21, 2022.

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