Beyond The Will

My Ex-Spouse Died and Failed to Comply with Our Divorce Judgment – What Can I Do?!

May 14, 2020


Once upon a time, John and Jane got married and promised to love each other “until death do us part.”  Unfortunately, things changed, and John and Jane got divorced.  Even after divorce, however, they remained connected financially – each of them was required by their Judgment of Divorce to transfer certain property to the other and to share certain ongoing expenses for their children. Jane was required to pay child support and alimony to John, and both parties were required to maintain a certain level of life insurance to secure their financial obligations to each other. A few years down the road, Jane’s death did in fact further “part” John and Jane. By that time, their children had all reached the age of majority and completed their college educations, but Jane was still obligated to pay alimony to John; an obligation that had fallen into arrears. She also was still required to maintain life insurance to secure her alimony obligation; but it turned out she had changed the beneficiary designation on her life insurance policy to name her new spouse, without John’s knowledge or consent and without further Order of the Probate and Family Court. Adding insult to injury, John realized that the parties never took the necessary steps to complete the transfer of certain retirement assets from Jane to John as required by the Judgment, nor to transfer title to the former marital home from John to Jane. What a mess!

Can John collect the alimony arrearage from Jane’s estate?  Yes. Because Jane died owing him money, John is considered a “creditor” of Jane’s Estate. To perfect his claim, John must do two things within one year of Jane’s death:  he must commence a legal action against the Estate to enforce and collect on the alimony obligation; and he must file a Notice of Claim in the division of the Probate and Family Court where the Estate is being administered. As for suing the Estate, there are three options available to John.  The first, and most simple procedure, is a Complaint for Contempt alleging that Jane, prior to her death, willfully violated a clear and unequivocal Judgment by failing to pay alimony to John. A second potential avenue in the Probate and Family Court would be a Complaint in Equity asserting one or more causes of action for recoupment of the past-due alimony, likely including promissory estoppel and unjust enrichment. The third option would be a civil Complaint in the District Court or Superior Court (depending on the amount in controversy) alleging breach of contract; but note, that option would be available only if the alimony obligation derived from a Separation Agreement executed by the parties (i.e., a contract between them) which was incorporated into the Judgment of Divorce.  In each of these potential actions, the named Defendant would be the Personal Representative of Jane’s Estate. If no Personal Representative has been appointed and if the one-year statute of limitations is approaching, John would actually have standing himself, as a creditor, to commence probate proceedings and ask the Court to appoint a Personal Representative.

Can John collect the life insurance policy notwithstanding the beneficiary designation naming Jane’s new spouse?  No, but that doesn’t mean he is without remedy. The insurance company is contractually bound to honor the beneficiary designation on the account. However, there are steps John can take to collect what is owed to him. He can file a Contempt action and a creditor’s claim against the Estate, seeking to recoup from the Estate the value of the life insurance benefit he should have received.  In addition or in the alternative, he can pursue equitable remedies against the new spouse, including claims such as unjust enrichment. In either case, John should put the insurance company on notice of a dispute regarding proceeds of the life insurance, and consider a Motion for Preliminary Injunction or other similar Motion to preclude the policy from being paid out until the dispute is resolved.

Can John compel the transfer of certain retirement assets from Jane after her death?  Yes.  John’s right to those certain retirement assets vested upon entry of the Judgment granting those assets to him. The Personal Representative of Jane’s estate can be required to cooperate with the process of drafting and implementing a Qualified Domestic Relations Order (QDRO) to complete whatever division of Jane’s retirement account was ordered. QDROs are tricky, technical documents, and divorce attorneys typically refer that work to lawyers who specialize in that particular area, with the costs shared by the parties. A division of retirement accounts many years post-divorce may be complicated by a need to separate out post-divorce contributions, and/or to determine how to treat market appreciation or depreciation. In most cases, this is something that should be worked out cooperatively with the neutral QDRO attorney.  In the event of a dispute, either party could seek judicial input from the Probate Court by way of a post-judgment Motion or Petition to address circumstances that were not contemplated at the time the Judgment was entered.

Can Jane’s estate compel John to transfer title to the former marital home?  Yes.  John may feel entitled to keep the house, given that it remained titled in his name at the time of Jane’s death, especially if she owed him money for past-due alimony and other divorce-related obligations, but the fact of the matter is that Jane’s right to the house vested upon entry of the Judgment granting it to her. The Personal Representative of Jane’s estate may step into Jane’s shoes to enforce the transfer post-death, whether through Contempt proceedings in the Probate Court, or (if the obligation derives from a Separation Agreement incorporated into a Judgment) via a breach-of-contract action in the Superior Court.

You may hope that your ex will comply in all respects with his/her obligations under your Judgment of Divorce, but hey – if they were that trustworthy, maybe you’d still be married to them. All kidding aside, divorce is complicated, and situations often arise following the death of one spouse that require careful scrutiny of the Judgment to ensure all is as ordered and intended. A lawyer well-versed in both divorce and probate matters (*author raises hand*) can help navigate these intertwining legal concepts and take necessary steps to remedy any inadvertent or intentional gaps.

Until next time!


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