■ H died during the pendency of the divorce action (we’ve been assured it wasn’t a result of receiving his lawyer’s bill). H’s executor sought a constructive trust to prevent the unjust enrichment that would allegedly occur if W retained marital property beneficially belonging to H. The court held that the equities involved require relief from the strict legal effects of defendant's death during the divorce.■ When spouses divorce marital property is distributed equitably between them in accordance with state law. But, when one spouse dies during the pendency of the divorce the action is abated and statutory equitable distribution is unavailable. Marital property does not lose its essential and distinctive nature as property arising from the joint contributions of both spouses during the marriage because of the death of one spouse during the pendency of divorce proceedings. ■ Upon a sufficient evidentiary showing the courts should invoke the equitable remedy of constructive trust, and principles of quasi-contract, to avoid the unjust enrichment that would occur if the marital property held by the surviving spouse included a share beneficially belonging to the deceased spouse’s estate. ■ When property has been acquired in such circumstances that the holder of legal title should not in good conscience retain the beneficial interest, equity converts the owner into a trustee. ■ Public policy would be disserved if courts were to automatically foreclose equitable claims concerning marital property presented by the estate of a deceased spouse. The prospect of an estate continuing a battle over marital property that cannot be completed by a spouse who died while the divorce was pending is unpleasant, but precluding an estate from obtaining an equitable remedy is not appropriate. Kay v. Kay, No.A-93-08, New Jersey Supreme Court, October 13, 2009.
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