Patricia KONCZYK v. Jerome KONCZYK, 367 N.J. Super. 551 (Chan. Div. 2003), April 17, 2003:

Alimony is an allowance for support and maintenance when spouses are living separate and apart or are divorced. Davis v. Davis, 184 N.J.Super. 430, 446 A.2d 540 (App.Div.1982). Our Legislature has addressed alimony at N.J.S.A. 2A:34-23 et seq.

The Court may require “reasonable security” for alimony. N.J.S.A. 2A:34-23.

Historically, and under the common law, alimony stopped when the obligor died because alimony is personal to the paying spouse. Jacobitti v. Jacobitti 135 N.J. 571, 573, 641 A.2d 535, 536 (1994). Thus, courts would not enforce “post mortem” alimony. Over the years, that principal has been eroded somewhat as courts have looked to the provision of life insurance or trusts to provide financial security to spouses or children after the death of the paying spouse. See Meerwarth v. Meerwarth, 71 N.J. 541, 366 A.2d 979 (1976); Davis, supra., 184 N.J.Super. at 430, 446 A.2d at 540. Our statutes continue to recognize the principle that alimony terminates at death.

Alimony shall terminate upon the death of the payer spouse, except that any arrearages that have accrued prior to the date of the payer spouse’s death 1194 shall not be vacated or annulled. [N.J.S.A. 2A:34-25].

However, the statute now further provides that,

[n]othing in this Act shall be construed to prohibit a court from ordering either spouse to maintain life insurance for the protection of the former spouse or the children of the marriage in the event of the payer spouse’s death. [Id.].

Because life insurance is only payable after the death of the insured and generally passes outside the insured’s estate to the beneficiary of the policy, this protection for a surviving spouse or child arguably could constitute post mortem alimony. However, the issue of whether life insurance can be used as security for alimony or child support payments has long been put to rest in New Jersey. See N.J.S.A. 2A:34-25; Meerwarth, supra., 71 N.J. at 541, 366 A.2d at 979 (husband required to obtain life insurance for protection of former wife and children); Davis, supra., 184 N.J.Super. at 430, 446 A.2d 540 (husband required to provide life insurance as security for wife’s alimony in the event husband predeceases wife); Hirko v. Hirko, 166 N.J.Super. 111, 398 A.2d 1353 (Ch.Div. 1979) (court allows levy on cash value of life insurance to satisfy judgment for alimony arrears); Grotsky v. Grotsky, 58 N.J. 354, 277 A.2d 535 (1971) (insurance to secure child support); see 11 N.J.P.A.R. at § 33.3 (“Security for Support Obligations”).

In cases where the insurance obligation functions as security for the support obligation, courts have shown a willingness to limit payment of insurance proceeds to conform with the underlying obligation and avoid a windfall to the supported spouse or his/her estate.

A person who is required to be named as the beneficiary of life insurance under a divorce decree has a vested equitable interest in such life insurance. 22 Causes of Action, § 463, Sec. 2. See Travelers Ins. Co. v. Johnson, 579 F.Supp. 1457 (D.N.J.1984).

The “protection” that a plaintiff is owed is the alimony due to her under the Final Judgment of Divorce at the time of the obligor’s death. The full policy (if it exceeds the amount owed) should be paid to plaintiff because such a result would create an unfair windfall for plaintiff.

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