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Tuesday, February 3, 2009

01-28-09 Kay v. Kay, Kanefsky, Executor of the Estate of Kay A-1594-07T3

01-28-09 Hildegard Kay v. George 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 it.