Family Law

DEATH AND DIVORCE: A CONTEST IN INCOMPATIBILITY

By Fox Rothschild

Until 2005 and a series of amendments to the Pennsylvania Divorce Code the law of Pennsylvania was quite clear. If one party died before a decree of divorce was entered and all appeals had expired, the divorce was over. In re Estate of Bullotta, 798 A.2d 771, 774 aff'd 838 A.2d 534 (Pa. Supreme (2003). The effect was as if no divorce was ever filed. If property was jointly held, it went to the surviving spouse even though divorce grounds were established. Claims for economic relief would dissolve. Even where the matter had been disposed of by the trial court, if an appeal was pending, death of a party still ended the divorce for all intents and purposes.

Recognizing that this produced some highly inequitable results, the General Assembly sought to remedy this in 2004 when Divorce Code amendments were considered. Section 3323(d.1) was added providing that where divorce grounds have been established, the divorce action would proceed with the executor for the decedent being substituted as a party for the decedent.

To establish grounds the statute established the following rules. If a fault divorce was pending the Court needs to have found that divorce grounds were established. It is unclear what the effect would be if a trial court found that grounds were established only to have that finding reversed by an appellate court. If both parties consented to the divorce, grounds were established. Finally if an affidavit of two year separation was filed without contest or the court found two years of separation had elapsed and the marriage was irretrievably broken, grounds were again said to be 'proven'.

Where grounds are not established as of the date of death, the old rules apply. The divorce ends and each party resorts to those rights created by federal laws like the Retirement Equity Act, the rights of joint owners to the decedent's interests and the rights to take against the will under the Probate Code. Taper v. Taper, 939 A.2d 969,973 (Pa. S. 2007)

What does this mean? If there are no grounds established, the survivor will get all of the qualified retirement benefits such as 401(k) plan. Where property is held as a joint tenancy, the survivor gets all. Even if the decedent prepares a will leaving it all to the non-spouse, the Probate Code permits the surviving spouse to take 'against' the decedent's will, thereby claiming portions of certain assets classes.

In a case decided last December a divorce action was initiated in 2001 by husband. In July 2006 Husband had a heart attack and lapsed into a coma. He died later that year. A year later Wife asked that a personal representative be appointed for Husband so that the divorce could proceed. The trial court declined because ground were not established as of the date of death even though they probably could have been proven. Because they were not 'established' by the date of death the trial court lost jurisdiction to proceed. Gerow v. Gerow, 962 A.2d 1206 (Pa. Super. 2008)

Full post as published by Pennsylvania Family Law on April 09, 2009 (boomark / email).