A New Jersey appellate decision decided June 29, 2026 — In the Matter of the Estate of Agnieshka Burke — offers a stark illustration of what can happen when someone dies while a divorce is still pending. The case involves a $500,000 life insurance policy, a Will that named the estranged husband as executor and sole beneficiary, and a fight between that husband and the decedent's sister over who gets what. The court's ruling touches on three issues that matter to anyone who is separated, going through a divorce, or simply has not updated their estate plan in years: whether your Will still works the way you intended, who controls your estate when you die, and what happens to assets like life insurance that pass outside your Will entirely.
Dying With a Divorce Pending
Under New Jersey law, a divorce action ordinarily ends when a final judgment of divorce is entered. If one spouse dies before that happens, the divorce proceedings have traditionally abated — meaning they simply stop. The surviving spouse inherits under the Will or under the intestacy laws if there is no Will, and the court's power to divide marital property (called equitable distribution) disappears.
The Legislature changed this rule in January 2024 by adding subsection (h)(2) to the equitable distribution statute, N.J.S.A. 2A:34-23. The new provision states that if a divorce complaint has been filed and either party dies before a final judgment is entered, the court's authority to divide marital property does not abate. In Burke, the Appellate Division confirmed that this right belongs not just to a surviving spouse, but also to the estate of the spouse who died. In plain terms, if you file for divorce and then die before it is finished, your estate (acting through a personal representative) may still be able to pursue a share of the marital assets.
This is a significant development for anyone with a pending divorce. It means that death during divorce proceedings does not necessarily resolve the property dispute. It may simply transfer the fight to a different courtroom.
Your Executor May Have a Conflict of Interest
In Burke, Agnieshka had named her husband Jared as executor of her Will. After she died with the divorce still pending, Jared was appointed executor and also stood as the primary beneficiary under both her Will and life insurance policy. The court found this created an irreconcilable conflict of interest. As the Appellate Division put it, Jared's responsibilities to represent the estate's interests and his own personal interests were "directly adverse."
The court did not remove Jared as executor entirely, but it disqualified him from acting as executor in connection with the equitable distribution dispute — the exact proceeding where the estate's most valuable rights were at stake. It then ordered the Probate Part to appoint a substitute executor for that limited purpose, and noted that Agnieshka's Will had already named her sister as successor executor.
The lesson here is direct. If you are separated or in the middle of a divorce, your spouse is most likely still named in your Will as executor, beneficiary, or both. Unless your Will is updated or the divorce is finalized, that person retains legal authority over your estate when you die. New Jersey law does automatically revoke certain transfers to a former spouse after a divorce is complete under N.J.S.A. 3B:3-14, but that protection does not kick in until the divorce is actually finalized. Separation alone changes nothing.
Non-Probate Assets Are a Separate Problem
Most people assume their Will controls everything they own. It does not. Assets that pass by beneficiary designation — life insurance, retirement accounts, payable-on-death bank accounts — transfer directly to the named beneficiary regardless of what the Will says. These are called non-probate assets, and they pass outside of probate entirely.
In Burke, Agnieshka's $500,000 life insurance policy named Jared as the sole beneficiary. The couple was separated and a divorce was pending, but she had not changed the designation. The Appellate Division sent the question of who is entitled to those proceeds to the Family court for resolution, but it was careful to note that Jared remains the named beneficiary and that no settlement agreement or final divorce judgment existed that would automatically revoke that designation under N.J.S.A. 3B:3-14.
This is where many people are caught off guard. You can update your Will, but if you forget to change the beneficiary on your life insurance policy or your 401(k), those assets still pass directly to your estranged spouse. The only way to ensure your beneficiary designations reflect your current intentions is to change them directly with the insurance company, bank, or plan administrator — a Will cannot override them.
What You Should Do Now
If you are separated or going through a divorce, your estate plan needs immediate attention on several fronts. First, after consulting your divorce attorney, review and update your Will to name a new executor and new beneficiaries. Second, also after consulting your divorce attorney, change beneficiary designations on every account that carries one — life insurance, IRAs, 401(k)s, annuities, payable-on-death accounts. Third, review any powers of attorney and health care proxies that name your spouse as your agent. In New Jersey, the divorce statute does not automatically revoke a health care proxy naming a spouse, so your estranged husband or wife may still have the legal authority to make medical decisions for you if you become incapacitated. For more on how that works, see who makes medical decisions in New Jersey.
There are also Medicaid planning considerations that arise when a couple separates but does not yet divorce — particularly for couples where one spouse may need long-term care. Medicaid's spousal protection rules treat legally married couples as a unit for purposes of resource assessment, which can affect eligibility and planning options. For more on that issue, see Medicaid and divorce in New Jersey.
The Burke case is a reminder that separation is not a legal status that protects you or your estate. Until a divorce is final, your spouse remains your legal spouse for virtually every purpose that matters in estate planning. If your circumstances have changed, your documents need to change with them.