In the Matter of the Estate of Agnieshka Burke

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1493-25

IN THE MATTER OF THE

ESTATE OF AGNIESHKA

BURKE, DECEASED.

_______________________

Argued April 20, 2026 – Decided June 29, 2026

Before Judges Natali and Walcott-Henderson.

On appeal from the Superior Court of New Jersey,

Chancery Division, Essex County, Docket No. CP-

000420-24.

Marisa Lepore Hovanec argued the cause for appellant

Jared Burke (Hovanec & Divito, LLC, attorneys;

Marisa Lepore Hovanec, of counsel and on the brief).

Joshua P. Donovick argued the cause for respondent

Katarzyna Kostro (Skylands Legal LLC, attorneys;

Joshua P. Donovick, on the brief).

PER CURIAM

In this probate matter, Jared Burke, the estranged husband of decedent

Agnieshka Burke, appeals from a November 6, 2025 order that: (1) denied his

motion for summary judgment, (2) permitted Agnieshka's 1 estate to seek

equitable distribution in the pending divorce matter between the parties, (3)

determined Jared had an irreconcilable a conflict of interest in that matter

precluding him from serving as the executor in any disputed equitable

distribution proceeding in the Family Part, and (4) referred to the Family Part

all disputed issues related to equitable distribution of her estate including

whether her life insurance policy constituted marital property. For the reasons

discussed below, we affirm in part and remand in part.

I.

We restate the facts from the sparse record before us. 2 This appeal arises

from a probate action commenced after Agnieshka's unexpected death on August

1

Because the parties share the same surname, intending no disrespect, we use

first names for clarity in this opinion.

2

There is no dispute between the parties with respect to the underlying events,

procedural history, and the respective relief sought. We discern the relevant

facts from Agnieshka's will, Jared's statement of material facts submitted to the

court as part of his application for summary judgment, and the hearing

transcripts but note the following are not included in the record before us: (1)

Agnieshka's life insurance policy; (2) Agnieshka's sister Katarzyna Kostro's

complaint, application to show cause, and caveat in the probate matter with

respect to the will; (3) Jared's answer in the probate matter; (4) Kostro's

application to show cause in the Family Part; (5) the Family Part's October 1,

2024 order enjoying the transfer of marital assets; and (6) the federal district

court's February 18, 2025 order dismissing the life insurance company.

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2

14, 2024, while legally married to Jared. Five months prior to her death,

Agnieshka filed a complaint for divorce against Jared, for which no final

judgment has been entered. Her only heirs were Jared and their two children.

She maintained a term life insurance policy with a face value of $500,000 with

Jared as her sole beneficiary.

Prior to her death, but before the initiation of the divorce proceedings,

Agnieshka also executed a twenty-five-article last will and testament. 3

Following her death, the will was admitted to probate, and letters testamentary

were issued to Jared.

In relevant part, the will provided that Agnieshka was "married to Jared

Thomas Burke and any reference to [her s]pouse shall be to Jared Thomas

Burke." The will appointed "[her s]pouse, Jared Thomas Burke, to serve as

[e]xecutor" and appointed "[her] sister, Katarzyna Kostro, to serve as [successor

e]xecutor" in the event the initial executor "has failed to qualify or ceased to

serve as an [e]xecutor." The will appointed Jared as guardian of her children.

The will gave "all [her] tangible personal property . . . to [her s]pouse,"

and if he did not survive her, the replacement executor was authorized to sell

3

Although initially not in the record, the parties submitted Agnieshka's will as

a supplemental appendix upon our request at oral argument.

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3

any property that he or she "may determine [Agnieshka] would not wish to have

preserved for [her] children." The residuary estate was also left to her spouse,

and in the event he did not survive her, the residuary estate passed to "[her]

descendants." In a section entitled "Takers of Last Resort," the will distributed

"any property that [was] not otherwise disposed of under this [w]ill" to her sister.

In article twenty-three entitled "Definitions and Miscellaneous

Provisions," the will defined "spouse" as "the person (if any) to whom that

individual is married at any given time." The will defined "surviving spouse"

as "the person (if any) who survives that individual and who is married to and

living with that individual as a married couple at the time of his or her deat h . .

. ." The will further defined "[m]y spouse" as "Jared Thomas Burke." Within

that definition, the will defined "[m]y surviving spouse" also as Jared if he "is

married to [her] and living together with [her] as a married couple at the time of

[her] death . . . ."

After the will was admitted to probate, Kostro filed a caveat and protest

of "any paper purporting to be the [w]ill . . ., as well as the appointment of a

personal representative for [her e]state." Further, she filed a complaint and order

to show cause for probate of the will and appointment of executor. In her

complaint, she specifically sought, among other relief: (1) to revoke any

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4

appointments and distributions to Jared based on the doctrine of implied

revocation and the will's express provisions; (2) to find he has a conflict of

interest with respect to his appointment as executor due to the pending divorce

litigation; (3) to appoint herself as executor; (4) to withhold distribution of the

proceeds of Agnieshka's life insurance policy and find its proceeds belong to the

marital estate subject to equitable distribution.

In response to Kostro's complaint, Jared filed a verified answer and

sought, among other relief: (1) to dismiss the caveat; (2) to find he has no

conflict of interest; (3) to order the appropriate appointments and distributions

to himself under the will; (4) to appoint himself as the executor; and (5) to

distribute the proceeds of the life insurance policy as his sole property.

Separately, in the Family Part, Kostro filed an order to show cause

seeking, among other relief, her appointment as personal representative of

Agnieshka's interests in the divorce proceedings and to continue the action on

her behalf. In response, the court entered an October 1, 2024 order restraining

and enjoining any party from transferring any marital assets, and requiring that

any life insurance policy proceeds be placed into the parties' counsel's trust

account, pending further court order. Further, a federal district court entered a

February 18, 2025 consent final judgment order providing, in relevant part, for

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5

the life insurance proceeds to be deposited into the attorneys' trust account, and

for the parties' respective claims to the life insurance proceeds to be litigated in

the Superior Court of New Jersey without further participation by the company.

Following the stay in the Family Part and resolution of the matter in

federal district court, Jared filed an application in the Probate Part seeking

summary judgment to dismiss all Kostro's claims and affirming his appointment

and rights under the will. He asserted the will was valid, the estate had no right

to equitable distribution, and as such, there was no conflict of interest, and the

life insurance proceeds belonged solely to him.

Kostro filed a cross-motion seeking summary judgment on her respective

claims and denying his counterclaims. In light of the outstanding divorce

proceedings between Agnieshka and Jared and the will's definition of "my

surviving spouse" that required the parties to be "living together," Kostro

asserted Agnieshka intended to exclude him from her will.4 She argued the

estate has the right to equitable distribution pursuant to N.J.S.A. 2A:34-23(h)(2)

("subsection (h)(2)"). She maintained the life insurance proceeds belonged to

4

The record does not indicate whether the parties were, in fact, living together

at the time of Agnieshka's death, or at any time while divorce proceedings were

pending. We note, however, neither party seems to dispute the fact that they

were separated.

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the marital estate and were subject to equitable distribution such that Jared has

a conflict of interest due to his responsibilities as executor.

At oral argument before the court, Kostro argued she was named as the

substitute executor of the will and that the language of the will created a

"distinction between my spouse and my surviving spouse." She maintained

Jared had a conflict of interest because the intention of subsection (h)(2) "is that

the interests of other stakeholders in this type of situation where someone has

died after the complaint for divorce has been filed . . . must have a venue to be

heard and to be advocated for." She asserted he "cannot both simultaneously

represent his own interests and those of his successor beneficiaries." In

response, Jared maintained he met both definitions of spouse and surviving

spouse as they appear in the will and contended Agnieshka clearly intended him

to be the executor. He asserted subsection (h)(2) was only intended to protect

the "surviving spouse," not the estate, consistent with the statute's legislative

intent.

After considering the parties' arguments and submissions, the court

initially concluded it could not rule on whether a conflict of interest existed in

light of the unresolved issue of whether an estate, under subsection (h)(2), can

pursue equitable distribution in the Family Part on behalf of a spouse who dies

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7

during divorce proceedings. The court decided the Probate Part was, indeed, the

proper venue to decide that "legal threshold issue." The court requested

additional briefing from the parties with respect to equitable distribution and

scheduled an additional hearing on November 5, 2025.

At the November 5th proceeding, Jared argued subsection (h)(2) only

applied to the surviving spouse and cannot benefit the estate as "the amendments

to the statute in 2023 were to close the equitable distribution black hole "

recognized in Carr v. Carr, 120 N.J. 336 (1990). He contended, in Carr, our

Supreme Court "determined that [such] a black hole existed when one spouse

died during the marriage and that the decedent spouse had written the surviving

spouse out of their will." Because Kostro on behalf of the estate was pursuing

equitable distribution, and not the surviving spouse, Jared asserted "[t]his [was]

not the situation that the [L]egislature was addressing when [it] amended the

statute, and that [was] reflected in the legislative history . . . ."

In the event equitable distribution could be pursued, Jared argued, under

the will, the children are "the alternate beneficiaries of anything" and Agnieshka

had named him "as guardian of the children." Accordingly, he, as the "sole

caretaker and provider of those children," had no conflict "where it [was] his

responsibility to take care of the children." He also asserted the court could

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distribute the proceeds of the life insurance as "[t]erm policies for life insurance

are not subject to equitable distribution."

The court held the estate could invoke subsection (h)(2) to pursue

equitable distribution and decided the statute "seem[ed] very clear" that "this

[was] a situation that [the statute] considered," because subsection (h)(2)

provides if "either party to the litigation dies prior to the entry of final judgment

. . ., the court's authority to effectuate an equitable distribution of the property

shall not abate." (emphasis added) (quoting N.J.S.A. 2A:34-23(h)(2)).

In light of its decision that subsection (h)(2) did not preclude the estate

from seeking equitable distribution, the court next concluded Jared had a

conflict of interest. Relying on In re Est. of Di Bella, 372 N.J. Super. 350 (Ch.

Div. 2004), the court found a "toxic conflict of interest" existed because, as

executor of the will and also the opposing party to the proceedings, Jared's

interests were directly adverse. The court concluded it "was not saying that

[Jared was] out as executor" entirely, but rather only with respect to the issue of

equitable distribution in the matrimonial litigation. The court did not, however,

decide who would become the "substitute executor." Further, the court held the

proceeds of the life insurance policy would not "go through [p]robate" because

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whether the estate will be awarded equitable distribution remained an open

question "in the purview of the Family Part."

The following day, the court issued a conforming order denying both

parties' application for summary judgment and found:

A. The [c]ourt finds and declares that N.J.S.A. 2A:34-

23(h)(2) permits the personal representative of the

estate of a decedent to seek equitable distribution

before the Family Part when an application for

dissolution of marriage has been filed and not

dismissed pursuant to R. 4:6-2 . . ., and thereafter but

prior to the entry of final judgment either party to the

dissolution proceedings should die.

B. The [c]ourt finds and declares that [Jared], has a

conflict of interest between his interests as an

individual and his fiduciary responsibilities to

[Agnieshka's estate] with respect to the [e]state's right

to seek equitable distribution, and therefore is

disqualified from serving as the [e]xecutor of the

[e]state for that purpose.

C. The [c]ourt finds and declares that the question of

whether the proceeds of [life insurance policy held on

Agnieshka's life] belong to the marital estate of the

[Agnieshka] and [Jared], or whether the proceeds

belong to [Jared] as the named beneficiary, is within the

jurisdiction of the Family Part and shall be subject to

further proceedings therein.

After the court issued its order, Jared filed an application seeking interlocutory

appeal, which we granted.

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II.

Before us, Jared argues the court misconstrued subsection (h)(2) because

it was not intended to allow a personal representative of an estate to pursue

equitable distribution. Rather, in light of the amendment's legislative history,

he contends it only permits the surviving spouse to pursue equitable distribution.

Specifically, he argues the Senate Committee Report's repeated emphasis on the

surviving spouse and its failure to mention the deceased's spouse estate or

personal representative support such an interpretation. He also relies upon Carr,

120 N.J. at 336, for the assertion that the "black hole" identified by the Supreme

Court and addressed by N.J.S.A. 2A:34-23(h)(2), only applies to surviving

spouses, not estates.

Jared further contends the court's decision improperly creates a "free-

floating property right that attaches to the estate by operation of law upon a

litigant's death." He asserts allowing the estate to seek equitable distribution

"violates bedrock probate principles" that the "testator's intent is paramount"

and "yields results so inconsistent with both probate and matrimonial

jurisprudence as to be unworkable." He contends the court's order implicitly

"invalidate[d]" N.J.S.A. 3B:3-14, which "only" permits revocation of probate

transfers in the event of a marriage annulment or divorce. In the event

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subsection (h)(2) permits the estate to initiate equitable distribution on behalf of

the deceased spouse, Jared argues there is no conflict of interest because

"nothing in statutory text or structure suggests that such a right should

automatically disqualify a surviving spouse from serving as [e]xecutor of the

decedent's estate when otherwise duly appointed." Finally, he maintains,

regardless whether subsection (h)(2) permits equitable distribution under the

circumstances, the court's referral to the Family Part with respect to the life

insurance policy was incorrect. He asserts proceeds of life insurance, "by

definition . . . were not acquired 'during the marriage,' as the marriage ended

upon [Agnieshka's] death" and maintains "there [was] no legitimate reason to

refer that issue to the Family Part."

III.

We review a decision on the interpretation and application of a statute de

novo. Pugliese v. State-Operated Sch. Dist. of City of Newark, 454 N.J. Super.

495, 503 (App. Div. 2018). "When interpreting a statute, [the] aim [is] to

effectuate the Legislature's intent, which is best indicated by the statutory text."

Keyworth v. CareOne at Madison Ave., 258 N.J. 359, 379 (2024) (citations

omitted). "In construing statutory text, 'words and phrases shall be given their

generally accepted meaning, unless that meaning is inconsistent with the clear

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intent of the Legislature or unless the statute provides a different meaning.

Words in a statute should not be read in isolation.'" Id. at 379-80 (quoting

Shelton v. Restaurant.com, Inc., 214 N.J. 419, 440 (2013)).

Further, we review issues of law de novo and accord no deference to the

trial judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 477-78

(2013). For mixed questions of law and fact, we give deference to the court 's

supported factual findings but review de novo the court's application of any legal

rules to such factual findings as the court's determination of the legal

consequences of established facts is not due any special deference from us. See

Manalapan Realty, L.P. v. Twp. Committee of Manalapan, 140 N.J. 366, 378

(1995); see also State v. Pierre, 223 N.J. 560, 576-77 (2015).

"Moreover, it has long been the practice in reviewing chancery decrees

for appellate courts 'to make an independent investigation of the facts.'" In re

Est. of Mosery, 349 N.J. Super. 515, 522 (App. Div. 2002) (citations omitted).

That same standard of review applies to an order removing an executor or

administrator. See In re Breckwoldt, 22 N.J. 271 (1956) (independently

examining the record in an appeal of an order removing an executor).

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A.

Equitable distribution is a statutory remedy that is available following the

entry of "a judgment of divorce, dissolution of civil union, divorce from bed and

board or legal separation from a partner in a civil union." N.J.S.A. 2A:34–23(h).

"[O]rdinarily, equitable distribution of marital assets arises only with the

adjudication of divorce." Carr, 120 N.J. at 343. "[W]hen one spouse dies during

the pendency of an action for divorce, the action is abated and statutory equitable

distribution is unavailable." Kay v. Kay, 405 N.J. Super. 278, 283 (App. Div.

2009) (citation omitted); see also Carr, 120 N.J. at 342 (citations omitted)

("Divorce proceedings abate with the death of one of the parties").

In exceptional circumstances, however, equitable relief may be available

in divorce actions following a spouse's death prior to the entry of a final

judgment. Equitable remedies, including constructive trusts, may be imposed

by a court to prevent unjust enrichment or fraud. Carr, 120 N.J. at 352.

Specifically, our Supreme Court has held that, "upon a sufficient evidentiary

showing," courts may invoke "the equitable remedy of constructive trust and

principles of quasi-contract 'to avoid the unjust enrichment that would occur if

the marital property devolving to [a decedent-spouse's estate] included the share

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beneficially belonging to' the surviving spouse." Kay, 405 N.J. Super. at 283

(alteration in original) (quoting Carr, 120 N.J. at 353-54).

In Carr, our Supreme Court held that a surviving spouse could be granted

a constructive trust following her husband's death "for the limited purpose of

proving that the deceased spouse had diverted marital assets, because equity

demanded that the innocent spouse have a forum through which to recover those

assets for equitable distribution." Kay v. Kay, 200 N.J. 551, 553 (2010) (citing

Carr, 120 N.J. at 353-54). Without this equitable remedy, the plaintiff, who

initiated a divorce action against her husband prior to his death, otherwise had

no "enforceable interest" against any of the marital assets in light of the late

husband's decision to leave his entire estate to his children from a prior marriage.

Carr, 120 N.J. at 339-40.

In Kay, our Supreme Court held the reverse was also true, specifically that

"the equitable principles that supported the relief granted in favor of the

surviving spouse in Carr would also inure to the benefit of the estate of a spouse

making a like claim." 200 N.J. at 552. In that case, following his brother's

death, the executor of the defendant's estate "sought a constructive trust to

prevent the unjust enrichment that would allegedly occur if [the] plaintiff and

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her daughter retained marital property beneficially belonging to [the]

defendant." Kay, 405 N.J. Super. at 281.

On January 8, 2024, our Legislature passed a series of amendments to the

equitable distribution statute, N.J.S.A. 2A:34-23, and elective share statute,

N.J.S.A. 3B:5-3, which, in relevant part, added to the equitable distribution

statute subsection (h)(2) which provides:

(2) If a complaint not dismissed pursuant to R. 4:6-2 of

the Rules of Court has been filed for [dissolution of a

civil union], and . . . either party to the litigation dies

prior to the entry of the final judgment, . . . the court's

authority to effectuate an equitable distribution of the

property shall not abate. Pursuant to subparagraph

(a)(3) of R. 4:3-1 of the Rules of Court, all such matters

shall be filed and heard in the Family Part of the

Chancery Division of the Superior Court.

[N.J.S.A. 2A:34-23(h)(2) (emphasis added).]

The Senate Judiciary Committee report noted this amendment "provide[d]

that if a complaint has been filed for divorce, . . . and either party dies prior to

the entry of a final judgment, . . . the court would be authorized to proceed with

awarding an equitable distribution of the couples' property." S. Jud. Comm.

Rep. on A.B. 2351 (June 17, 2023). The Assembly Judiciary Committee Report

added that "[u]nder current law, if a spouse or partner dies while the divorce or

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dissolution is pending, the survivor is excluded from equitable distribution."

Assembly Jud. Comm. Rep. on A.B. 2351 (June 19, 2023).

Further, N.J.S.A. 3B:3-14 "governs the [automatic] revocation of probate

and non-probate transfers by divorce." Matter of Est. of Jones, 259 N.J. 584,

596-97 (2025). As relevant here, the statute provides:

a. Except as provided by the express terms of a

governing instrument, a court order, or a contract

relating to the division of the marital estate made

between the divorced individuals before or after the

marriage, divorce or annulment, a divorce or

annulment:

(1) revokes any revocable:

(a) dispositions or appointment of property made by a

divorced individual to his former spouse . . . .

....

(c) nomination in a governing instrument of a divorced

individual's former spouse . . . to serve in any fiduciary

or representative capacity.

[N.J.S.A. 3B:3-14(a)(1)(a).]

Against these principles, we affirm the court's decision that subsection

(h)(2) does not preclude the personal representative of a decedent's estate to seek

equitable distribution and reject Jared's argument that subsection (h)(2) only

applies to surviving spouses. The statute's plain language expressly provides a

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court may grant equitable distribution for either party to the matrimonial

litigation, consistent with our Supreme Court's holdings in Carr and Kay. We

determine nothing in the legislative materials identified by Jared neither

expressly overrule Kay nor support his argument that an estate cannot seek

equitable distribution under the statute. See Comm. of Petitioners for Repeal of

Ordinance No. 522 (2013) of Borough of W. Wildwood v. Frederick , 435 N.J.

Super. 552, 567 (App. Div. 2014) (quoting David v. Gov't Emps. Ins. Co., 360

N.J. Super. 127, 143 (App. Div. 2003)) ("'[t]he Legislature is presumed to know

the law'"). Further, under Jared's interpretation, an estate would have no remedy

to seek equitable distribution to which it would otherwise be entitled under these

circumstances.

We also reject Jared's argument that the court's decision creates "a free-

floating property right." Rather, we are satisfied this statute, in fact, does not

change how matrimonial litigation under these circumstances would proceed

and, at a minimum, merely codifies the already pre-existing right afforded to a

surviving spouse or estate to seek a constructive trust of the marital property

under the narrow circumstances outlined in Carr and Kay. We also reject Jared's

assertion that N.J.S.A. 3B:3-14 provides for the automatic revocation of a

probate transfer only by a divorce or annulment in light of that statute's plain

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language that expressly allows court orders, among other exceptions, to prevent

revocation. See Jones, 259 N.J. at 601 (preventing automatic revocation of a

probate transfer pursuant to the express terms of a governing instrument).

In sum, we affirm the court's interpretation of subsection (h)(2) that an

estate acting on behalf of a decedent can seek equitable distribution under the

statute, in light of its plain language and our Supreme Court's holdings in Carr

and Kay. We reject Jared's argument that subsection (h)(2) only permits

surviving spouses to seek equitable distribution and are satisfied nothing in the

statute's legislative history supports a different outcome.

B.

A fiduciary, acting as executor, has broad statutory powers to administer

the estate "in the exercise of good faith and reasonable discretion . . . ." N.J.S.A.

3B:14-23. A fiduciary may be removed for cause, pursuant to N.J.S.A. 3B:14-

21, when:

a. After due notice of an order or judgment of the court

so directing, neglects or refuses, within the time fixed

by the court, to file an inventory, render an account, or

give security or additional security;

b. After due notice of any other order or judgment of

the court made under its proper authority, neglects or

refuses to perform or obey the order or judgment within

the time fixed by the court;

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c. Embezzles, wastes, or misapplies any part of the

estate for which the fiduciary is responsible, or abuses

the trust and confidence reposed in the fiduciary;

d. No longer resides nor has an office in the State and

neglects or refuses to proceed with the administration

of the estate and perform the duties required;

e. Is incapacitated for the transaction of business; or

f. Neglects or refuses, as one of two or more

fiduciaries, to perform the required duties or to join

with the other fiduciary or fiduciaries in the

administration of the estate for which they are

responsible whereby the proper administration and

settlement of the estate is or may be hindered or

prevented.

Courts should be "reluctant to remove an executor as trustee without clear

and definite proof of fraud, gross carelessness or indifference." In re Estate of

Hazeltine, 119 N.J. Eq. 308, 314 (Prerog. Ct.), aff'd, 121 N.J. Eq. 49 (E. & A.

1936). An executor should be removed when his or her conduct shows bad faith,

or jeopardizes the value of the estate's assets. Bramen v. Cent. Hanover Bank

& Trust Co., 138 N.J. Eq. 165, 197 (Ch. 1946).

A conflict of interest between an executor and beneficiaries of the estate

can be a basis for removal. In re Koretzky's Est., 8 N.J. 506, 528 (1951); In re

Kolbeck, 27 N.J. Super. 135, 137 (App. Div. 1953). Our courts have permitted

appointment of someone other than an heir to be administrator or executor of a

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will when the interests of the surviving spouse are in conflict with the best

interests of others entitled to distribution of the estate. Di Bella, 372 N.J. Super.

at 352-53; see also In re Estate of Messler, 16 N.J. Misc. 434, 434-37 (Orph. Ct.

1938) (disqualifying decedent's widow as administrator in light of her

"antagonism" toward decedent's adult child from a previous marriage).

In Di Bella, the court concluded the husband could not serve as

administrator to the deceased wife's estate and appointed her son from a prior

marriage as administrator. Di Bella, 372 N.J. Super. at 351. Because the wife,

who had died intestate, had initiated divorce proceedings a few months before

her untimely death, the court found the husband had a "toxic conflict of interest"

that prevented him from serving as administrator under the circumstances. Ibid.

Specifically, the court concluded that appointment of the husband as

administrator would create untenable conflicts including whether "he [would]

sit at [p]laintiff's counsel table as [a]dministrator or defense table in his personal

capacity" and "how [would] he as [a]dministrator approve the resolution of a

claim against himself." Id. at 353.

When an executor is, in fact, removed, N.J.S.A. 3B:10-15 provides that

"the vacancy so created shall . . . be filled by the appointment of a fit person to

exercise the vacated office." See also N.J.S.A. 3B:10-17 (entitled "Manner in

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which [substituted] appointment shall be made"). To this end, pursuant to

N.J.S.A. 3B:3-33.1(a), "[t]he court's primary goal in interpreting a [will] is to

fulfill the [testator's] intent[,]" In re Tr. of Nelson, 454 N.J. Super. 151, 158

(App. Div. 2018), and a "preponderance-of-the-evidence standard of proof

applies to interpretation." Id. at 160. "[T]he goal always is the ascertainment

of the testator's intent, and it is not to be thwarted by unduly stressing 'the literal

meaning' of his words." Id. at 158 (alteration in original) (quoting Fidelity

Union Trs. Co. v. Robert, 36 N.J. 561, 565 (1962)).

We discern no error in the court's conclusion that Jared should be removed

as executor of the estate with respect to any equitable distribution disputes. In

light of his obligations as executor including representing the estate in the

matrimonial litigation, a matter in which the estate can seek equitable

distribution while he is the opposing party, we are satisfied the court correctly

concluded he has a conflict of interest with respect to that issue. Like the

surviving spouse in Di Bella, Jared's responsibilities to represent the estate's

interests and his own personal interests are directly adverse, or at a minimum,

there is a significant risk that his responsibilities to the estate will be materially

limited. 372 N.J. Super. at 352-53; see also In re Kish's Est., 52 N.J. 454, 467

(1968) ("[f]iducaries . . . are under an obligation to carry out the direction of the

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testator or settlor"). We emphasize, however, that he has not been removed from

his role as executor entirely and note the court's decision narrowly disqualified

him only in the limited capacity to the extent the estate can seek equitable

distribution in the matrimonial ligation.

We reject Jared's arguments challenging the court's finding that he has an

unwaivable conflict of interest with respect to equitable distribution issues for

two independent reasons. First, as discussed, we disagree with his primary

contention that subsection (h)(2) only permits the surviving spouse to pursue

equitable distribution. Second, here, whether the estate intends to seek equitable

distribution is not a hypothetical concern. Indeed, as Jared acknowledged in his

application for summary judgment, Kostro filed a caveat and complaint

regarding her intention to seek equitable distribution on behalf of the estate .

We are also convinced, however, that the court's failure to properly

appoint a substitute executor to represent the estate's interests in the pending

equitable distribution action undermines the purpose of subsection (h)(2) and

risks prejudice to the estate and its beneficiaries. Accordingly, we remand to

the Probate Part as the appropriate forum with direction for it to appoint a

substitute executor for the limited purpose of representing the estate in all

matters relating to equitable distribution. We instruct the court to appoint the

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substitute executor pursuant to the requirements of N.J.S.A. 3B:10-15, and with

the understanding, which neither party disputes, that the will expressly provided

for Kostro to assume the position should she qualify.

C.

When an asset accrues after the end-date of the marital estate, the trial

court must evaluate whether the asset should be included in equitable

distribution. Brandenburg v. Brandenburg, 83 N.J. 198, 210 (1980). In the

evaluation process, the trial court must decide "whether the nature of the asset

is one that is the result of efforts put forth 'during the marriage' by the spouses

jointly, making it subject to equitable distribution." Pascale v. Pascale, 140 N.J.

583, 609 (1995). "'[A]ssets acquired after that enterprise or partnership no

longer exists should not be so included' in the marital estate." Robertson v.

Robertson, 381 N.J. Super. 199, 204 (App. Div. 2005) (quoting Portner v.

Portner, 93 N.J. 215, 219 (1983)). The party challenging the inclusion of an

asset in the marital estate bears "'the burden of establishing such immunity [from

equitable distribution] as to any particular asset.'" Pascale, 140 N.J. at 609

(quoting Landwehr v. Landwehr, 111 N.J. 491, 504 (1988)).

Non-probate assets such as life insurance and pension proceeds, however,

pass by operation of contract and property law outside of a decedent's estate.

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Fitzgerald v. Linnus, 336 N.J. Super. 458, 472-73 (App. Div. 2001); see also

Metro. Life Ins. Co. v. Woolf, 138 N.J. Eq. 450, 454-55 (E. & A. 1946). The

designation of a life insurance beneficiary is also considered a non-probate

transfer. See Hadfield v. Prudential Ins. Co., 408 N.J. Super. 48, 51 (App. Div.

2009).

Further, the general rule of law is that the beneficiary of a life insurance

policy can only be changed by a writing, and in the manner prescribed by the

policy. DeCeglia v. Estate of Colletti, 265 N.J. Super. 128 (App. Div. 1993).

The rule is tempered by the doctrine of substantial compliance; so, our courts

will effectuate a change of beneficiary where the insured has substantially

complied with the relevant policy provisions. Haynes v. Metro. Life Ins. Co.,

166 N.J. Super. 308, 313 (App. Div. 1979).

In Vasconi, the Supreme Court created an additional narrow exception to

this rule. Vasconi v. Guardian Life Ins. Co. of Am., 124 N.J. 338, 340 (1991).

In that case, the divorcing spouse waived, in a property settlement agreement,

any interest in the other's estate in the case of death, but the insured neglected

to remove the divorced spouse as a beneficiary before the insured's death. Id. at

340. The Vasconi court, however, credited the "probable intent of the decedent,"

and accordingly required a divorced spouse to rebut a presumption that she was

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not an intended beneficiary. Id. at 349. The Legislature would later codify

precisely such a rule in N.J.S.A. 3B:3-14, providing that divorce, subject to

certain exceptions, automatically revokes the divorcing individual's prior

insurance designation in favor of the former spouse. See Fox v. Lincoln Fin.

Grp., 439 N.J. Super. 380, 388-90 (App. Div. 2015).

The determination of whether a case is properly before the Family Part is

governed by Rule 5:1-2, which states that "[a]ll civil actions in which the

principal claim is unique to and arises out of a family or family relationship shall

be brought in the Family Part." R. 5:1-2(a); see also R. 4:3-1(a)(3). "Our

Supreme Court has stated that deference is to be given to the special expertise

developed by Family Part judges in dealing with family or family-type matters."

New Jersey Div. of Youth & Fam. Servs. v. M.W., 398 N.J. Super. 266, 287

(App. Div. 2007) (citing Cesare v. Cesare, 154 N.J. 394, 412-13 (1998)).

"While the Law Division/Probate Part has full authority to hear and

determine controversies over wills, trusts, and estates, it was not the intent of

the Legislature to permit that court to encroach upon the general jurisdiction of

the . . . Family Part given to it by the [New Jersey] Constitution." D'Angelo v.

D'Angelo, 208 N.J. Super. 729, 732 (Ch. Div. 1986). To this end, probate

actions arising out of family relationships or family-type relationships have been

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previously held cognizable in the Family Part. In re Est. of Roccamonte, 174

N.J. 381, 398-99 (2002); Kingsdorf v. Kingsdorf, 351 N.J. Super. 144, 159 (App.

Div. 2002); D'Angelo, 208 N.J. Super. at 732; Berlin v. Berlin, 200 N.J. Super.

275, 278-79 (Ch. Div. 1984).

We are satisfied the court correctly referred any issues with respect to the

life insurance policy to the Family Part, pending the court's appointment of a

substitute executor. In light of our decision about the estate's right to seek

equitable distribution under subsection (h)(2), we are convinced the Family Part,

relying on its expertise and a more fulsome record, is the correct venue to also

consider arguments regarding the life insurance proceeds for the swift and

efficient resolution of the matter and conclude there is no principled reason that

dictates a different outcome. We emphasize, however, the general contract

principles governing the distribution of life insurance proceeds and that Jared

is, indeed, the named beneficiary to the policy, a fact neither party disputes.

Further, we recognize that while the record before us does not indicate to

what extent the divorce proceedings progressed, neither party has suggested that

the divorce was finalized, much less that a settlement agreement even exists,

sufficient to warrant automatic revocation and removing Jared as the named

beneficiary, pursuant to N.J.S.A. 3B:3-14 or Vasconi. Accordingly, after the

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Probate Part appoints a substitute executor, we direct the Family Part to

promptly enter findings with respect to the distribution of the life insurance

proceeds and whether removal of Jared as the beneficiary is appropriate,

pursuant to N.J.S.A. 3B:3-14, or any other relevant exception recognized in our

case law.

To the extent we have not specifically addressed any of the parties '

remaining arguments, it is because we have determined they lack sufficient merit

to warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E).

Affirmed in part and remanded in part.

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