Does a Matrimonial Action Abate Upon the Death of a Party?

Once an action abates by reason of death, in general, the court will be divested of jurisdiction to determine any claims for ancillary financial relief, such as those for equitable distribution, support and counsel fees. As a consequence, the abatement of a divorce action may have severe financial consequences for the surviving spouse, or may lead to a windfall, depending on the circumstances. Therefore, on occasion, where the financial stakes are high between the surviving spouse and the decedent's estate, the issue of whether an action has abated as a matter of law has been litigated.

For example, in Sperber v. Schwartz, 139 AD2d 640 (2nd Dept. 1988), the Appellate Division, Second Department, affirmed an order that dismissed a cause of action for equitable distribution brought in Surrogate's Court by the administrator of the estate of the decedent-wife, who had been found murdered in the marital residence during the pendency of a divorce action. The Appellate Division found that the Surrogate Court properly dismissed the cause of action for equitable distribution. The court held that because the decedent died prior to a resolution of her action for a divorce, the action abated, thus precluding the maintenance of her related statutory claim for equitable distribution.