estate can still make claims if spouse dies while divorce pending
01-28-09 Kay v. Kay
Bernard Kanefsky, Executor of the Estate of George Kay
A-1594-07T3

George Kay died during the pendency of an action for
divorce, and the trial court denied his estate leave to
substitute for defendant and file amended pleadings. On appeal
the estate contends that the trial court erred by relying on
Krudzlo v. Krudzlo, 251 N.J. Super. 70, 73 (Ch. Div. 1990), in
which the court held that, unlike a surviving spouse, the estate
of a decedent spouse "is not entitled to assert equitable claims
against the marital estate sounding in constructive trust,
resulting trust, quasi-contract or unjust enrichment" in
accordance with Carr v. Carr, 120 N.J. 336 (1990).

We conclude that the trial court should have accepted the
pleadings and considered whether the equities stemming from the
facts alleged call for relief from the strict legal effects of
defendant's death during the pendency of the divorce action. To
the extent that Krudzlo provides a contrary rule, we disapprove