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Last month Upon Further Review published an article I submitted called “Till Death Does Your Stuff Part” (which can be found here) regarding the latest development in the law regarding the interaction between divorce litigation, estate litigation, and the death of a litigant. I am now following up that article with the instant one because within a few days of publication, I received some pretty interesting and clever responses to the aforesaid article, and I would like to address them here as I think the issues they raise are food for attorneys’ thought.
One of the responses inquired about the application of the Dead Man’s Act to a divorce matter where one party dies after divorce grounds have been established. The Dead Man’s Act (42 Pa.C.S.A. § 5930) deals with the admissibility of evidence against a decedent by the parties to a contract in which the decedent was also a party. The Act serves to restrict the surviving members of a contract from presenting testimonial evidence against the decedent, also a member of the same contract, of anything that occurred before his death. The precise interpretation of the Act by the Court is complex, storied, and beyond the scope of this article. Suffice it to say here, however, that the Act does pose an interesting question vis-à-vis divorce. Generally speaking, Pennsylvania views marriage as a contract and if marriage is a contract, and one of the spouses (i.e.: parties to the marriage contract) dies, can the other party to that contract (i.e.: the surviving spouse) present any evidence against the decedent spouse under the Act? The cases in Pennsylvania on the subject are rather unclear, generally very old, and largely irrelevant as they do not account for the change in Pennsylvania law (i.e.: 23 Pa.C.S.A. § 3323(d.1) and 20 Pa.C.S.A. § 2106(a)(2)) as described in my previous article mentioned above. The cases, for the most part, involve a spouse trying to provide testimony regarding the other spouse in an attempt to elect against the decedent spouse’s estate. The cases regarding a surviving spouse’s testimony provided to attempt to elect against a decedent’s estate are nearly universal in their opinions that the testimony is inadmissible under the Act (or something similar thereto). Despite this, the cases also seem to tend toward allowing a surviving spouse to provide testimony as the existence of the marriage relationship. Under 23 Pa.C.S.A. § 3323(d.1) and 20 Pa.C.S.A. 2106(a)(2), if divorce grounds are established, the only avenue for the surviving spouse for a decedent’s spouse’s property is through equitable distribution, therefore there is a question as to whether these cases still apply.
At present, the cases do not shed light as to what sort of testimony will be permitted to be provided at an equitable distribution hearing involving a decedent spouse. A strict reading of the Dead Man’s Act would seem to imply that testimony regarding the decedent spouse by the surviving spouse is inadmissible; however, logically speaking, this seems to be obviously contrary to what would appear to be the intent of the legislature in passing 23 Pa.C.S.A. § 3323(d.1) and 20 Pa.C.S.A. § 2106(a)(2). Further, pursuant to 42 Pa.C.S.A. § 5927, in actions brought by one spouse against another to recover separate property, the testimony of one spouse is deemed “fully competent.” As above, how this interplays with the Dead Man’s Act and equitable distribution is not clear, but it would seem to lean toward allowing the surviving spouse to provide testimony.
In my opinion, I do not think it makes much sense to specifically take a divorce matter involving a decedent spouse out of estate litigation (where testimony is specifically prohibited by case law) and place it into equitable distribution only to have the testimony of the surviving spouse deemed inadmissible under the Dead Man’s Act; indeed, cui bono? It seems logical to me to discern from the legislature’s decision regarding the placement of a case into equitable distribution that it also intended testimony regarding the decedent spouse and the marriage contract by the surviving spouse to be admissible and, perhaps, to expand 42 Pa.C.D.A. § 5927 to cover all property at issue in a divorce. Otherwise, 23 Pa.C.S.A. § 3323(d.1) and 20 Pa.C.S.A. § 2106(a)(2) are simply exercises in academic futility. Please note that what I have provided above is simply my opinion; I do not know exactly how this will all pan out. It will be interesting to see how the Court resolves this seeming conflict between the 23 Pa.C.S.A. § 3323(d.1) and 20 Pa.C.S.A. § 2106(a)(2) and the Dead Man’s Act.
Before I move to the next issue, I would note that despite the 23 Pa.C.S.A. § 3323(d.1) and 20 Pa.C.S.A. § 2106(a)(2), the Dead Man’s Act appears to remain applicable regarding testimony by a surviving spouse about a decedent spouse and a Pre and/or Post Nuptial Agreement.
The next issue presented to me by the readers of Upon Further Review is the application of ERISA to 23 Pa.C.S.A. § 3323(d.1) and 20 Pa.C.S.A. § 2106(a)(2). This matter seems much more straight forward than the Dead Man’s Act. ERISA, as a Federal law, preempts Pennsylvania divorce law; there is no dispute about that. Under ERISA, once a spouse dies the terms of the insurance policy and/or pension become “locked in” as it were. Therefore, even if a party is in the midst of a divorce and the decedent spouse intended to remove the surviving spouse as a beneficiary of his/her pension and/or insurance policy but does not due to his/her death, the surviving spouse remains as beneficiary regardless of the intent. At this point, of course, the surviving spouse can attempt to receive whatever survivor’s benefits s/he may be entitled to receive. Therefore, the appropriate response by the estate of the decedent spouse is to file for an injunction against the surviving spouse to prevent him/her from receiving the benefits. It should be remembered that the estate of the decedent spouse takes the place of the decedent spouse in the divorce litigation if divorce grounds are established (if no grounds are established, the divorce litigation may no longer proceed regardless). The estate, as a result, may proceed through equitable distribution as if the decedent spouse were so doing. Consequently, through equitable distribution it would seem that the estate of the decedent spouse may still secure a Qualified Domestic Relations Order regarding the insurance policy and/or pension covered by ERISA.
The final issue raised to me was the application of Pennsylvania’s hearsay rules to equitable distribution hearings regarding a decedent spouse. Under Pa.R.E. 804(a)(4), death, perhaps obviously, is considered one of the ways a witness can be “unavailable” for testimony. Under this Rule, if a witness is unavailable, hearsay testimony of the statements made by the unavailable witness may be admissible under certain circumstances. Under Pa.R.E. 804(b)(3), a statement made by a decedent against his/her own interest may be admissible as evidence. Further, under Pa.R.E. 804(b)(4), the testimony of a dead (i.e.: unavailable) witness is admissible with regard to various issues of his/her own family history. Of course, the weight and credibility of this testimony is still to be weighed by the fact finder, but it seems that the mere death of one of the divorcing spouses is insufficient on its face for an objection based on hearsay to be sustained. However, it does seem that eliciting such testimony may be problematic; it will be interesting to see how the Court elects to rule in these sorts of cases.
I hope the above sheds some additional light on the application of 23 Pa.C.S.A. § 3323(d.1) and 20 Pa.C.S.A. § 2106(a)(2). I greatly appreciate those readers who took the time to contact me regarding these issues and I hope, through our mutual efforts, we can make the practice of Pennsylvania law clearer and more effective.
This article also appeared in the Philadelphia Bar Association’s Upon Further Review on July 11, 2011 and can be found on my website here. This article was reprinted in Volume 33 Issue No. 3 (September 2011) of Pennsylvania Family Lawyer.
This past Monday was the Board of Directors meeting for the Christian Legal Clinics of Philadelphia. Each time I go these meetings I always come away encouraged and amazed by the fact that this relatively small group of attorneys about 10 years ago has grown to where it is now with each meeting presenting more ways to grow and revealing more ways it has grown.
Now, I am excited to say, the Clinic is set to expand into the Kensington section of Philadelphia as well as Chester! If we are successful in expanding to those locations that would make a total of six Clinics in the Philadelphia area! There was talk that, if the Chester Clinic takes off, we could establish a separate Christian Legal Clinic in Delaware County and perhaps others as we hopefully, God willing, continue to expand.
Another thing to mention is that most, if not all, of our meetings involve someone sharing a story of how God works in their lives in amazing ways. Judge Robert Matthews of Philadelphia Family Court is among the members of our Board. He shared a story of when he was still in practice and his client was a woman who was 94 years of age. It is not uncommon for estate planners to ask what sort of funeral arrangements someone wants, including whether s/he desires a religious ceremony. This particular 94 year old lady said she did not want a religious ceremony. Judge Matthews asked her if she were a member of a church; her answer was “no.” He then asked “are you a member of a religion?” She said “no.” He then asked – and to this day he does not know why – “are you baptized?” She said “no”. The lady’s daughter, who was with her, was astonished to learn that her mother was not baptized, and she asked her mother “why not?” She responded with “no one had asked me.” Judge Matthews then asked her if she wanted to be and she said “yes”. Judge Matthews then asked her whether she believed in the items in the Nicene Creed and whether she accepted Jesus Christ as her Lord and Savior. She responded in the affirmative to each of these questions, after which Judge Matthews promptly went and got a cup of water from the bathroom and baptized her then and there in his office. She passed four (4) days later.
How amazing and how simple! I think this story should give the average Christian who says “how can I share the faith?” some inspiration. Sometimes, as with this lady, all you need to do is take that very first step and ask. The faith – and salvation – cannot be shared without someone asking that first question and many people out there are waiting for someone to reach out their hand and ask it. I wonder how many people are out there who could be saved but have not embraced Christ simply because no one has ever asked him/her? God forgive our negligence and give us grace to simply reach out when we have the opportunity, even if it is with a simple question.
It goes without saying that a mother and father, generally speaking, have the primary right to custody over their child(ren). However, there may be times when a person who is not a parent may also have custodial rights over a child. With the rate of children being born to unwed parents at an all time high, which has also coincided with the worst economic climate in generations, many a parent has taken to relying on others to assist in the rearing of his/her child(ren), more frequently than in recent memory. This article will set forth the rights of persons who, assisting in the rearing of these children, may also have a right to the custody of the child(ren) of another in addition to, or instead of, the custody rights of the child(ren)’s parents.
The most common person who may have a right to custody of a child is a grandparent. Due to grandparents seeking custodial rights over their grandchildren becoming so common, the terms and guidelines by which a grandparent may have custody has been codified as 23 Pa.C.S.A. Section 5313. Generally speaking, a grandparent may only petition for “reasonable” partial custody and/or visitation of a grandchild if the grandchild has lived with the grandparent for at least twelve (12) months. The Court will only grant a grandparent partial custody and/or visitation of a grandchild if said custody/visitation is in the best interest of the child and will not interfere with the parents’ relationship with the (grand)child at issue.
Aside from the above, 23 Pa.C.S.A. Section 5313 also permits a grandparent to assume primary (or, perhaps, sole) physical and legal custody of a grandchild if certain conditions are met. Specifically, in the event that it is in the best interest of the child not to be in the custody of either parent, and also in the best interest of the child to be with his/her grandparent, a grandparent may be awarded custody if: (a) the grandparent has genuine care and concern for the child; (b) the grandparent’s relationship with the child began with the consent of a parent and/or order of court; and/or, (c) who has, for twelve (12) months, assumed the role and responsibilities of the child’s parent (or assumes the responsibility of the child’s parent pursuant to a dependency action), and/or believes the child is in substantial risk due to parental abuse, neglect, drug/alcohol abuse, and/or mental illness.
For the sake of completion, it should be noted that any custodial/visitation right afforded to a grandparent is also afforded to a great-grandparent. Additionally, the custodial/visitation rights of grandparents (and great-grandparents) are terminated and/or do not apply to a child who has been adopted by a person other than a stepparent or grandparent.
There are times when a party, who is not a parent, grandparent, or great-grandparent, may also assert custodial/visitation rights over a child; a custody action of this sort is commonly called a “third party custody action”. The threshold issue for a third party seeking custody of a child to establish is that s/he has standing to bring the custody/visitation action in the first place. To establish standing to bring a third-party custody action, a party must first overcome the presumption that any party, by definition, who is not a parent, grandparent, or great-grandparent, lacks standing to bring a custody/visitation action. In order to overcome the presumption, the third-party seeking custody/visitation must prove that s/he stands in loco parentis; that is, in the place of a parent. In order to establish that one stands in loco parentis, one must prove that s/he has essentially assumed parental status over a child and discharges parental duties for the same.
What does it mean to assume parental status? It means, for example, that the child lives with the third party; and/or, the child calls the third party mom/dad; and/or the third party holds him/her self out as the child’s parent; and/or the third-party performs duties usually reserved for parents. The third party’s attempt to assume the parental role and discharge parental duties may not be in defiance of the child’s parents. Additionally, simply being a child’s babysitter or caretaker, even if it is frequent, does not qualify one to custody.
Once a third party establishes that s/he stands in loco parentis for a child, the third party must then prove that it is in the best interests of the child for him/her to be awarded custody of the child. However, the burden of proof for the third party greatly exceeds that of a parent, grandparent, or great-grandparent. A third party must prove, by clear and convincing evidence, as opposed to merely the preponderance of the evidence, that awarding him/her custody is in the best interests of the child at issue. Additionally, the third party bears the burden of production, proof, and persuasion when seeking custody of a child. Interestingly, the third party’s burden is not reduced if s/he is a member of the child’s family.
Finally, a Court will act to protect the relationship of the child’s relationship over that of a third party. Suffice it to say, though it is possible for a third party to be awarded custody of a child, it is an extremely difficult task. Indeed, probably the best forum for a third party seeking custody of a child would be in the context of a dependency action.
Although, generally speaking, only a child’s parents have the right to have custody of their child(ren), as noted above, there may be times when a non-parent can assert custodial rights over a child. When it comes to the custody of a child, the best interest of the child is the ultimate determinate of who is awarded custody. Indeed, despite all of the drama and angst often so prevalent in custody cases, it is hoped that all parties involved ultimately want what is best for the child at issue and the child will end up living with the best person for him/her.
This Article Appeared in the Philadelphia Bar Association’s “Upon Further Review” on August 12, 2010 and can also be found here on my website.
This article was also reprinted in the “Pennsylvania Family Lawyer” in September 2010.
I recently led a seminar at Greenfield Elementary School here in Center City Philadelphia. Greenfield is a public school near the Rittenhouse Square section of Center City. The pupils are racially diverse and mainly are drawn from the local neighborhood.
I had the opportunity to lead a class of 6th graders and a class of 8th graders. Teaching is something that I, occasionally, wished I pursued as a profession as when I have the opportunity to do it, I love it. Of course, who knows how I would feel in the daily grind of teaching the kids and I am not a featured speaker for the day?
I am always amused by what the kids in the class think I do for a living. Thanks to television shows the kids presume some combination of the following: (1) I am always in court and doing glamorous things; (2) dealing with crimes and alleged criminals every day; and/or (3) engaging in the sort of drama one would see on the Judge Judy television program. Like most people, they are fascinated and/or incredulous to learn that I do not bear any ill will or bad feelings toward an opposing attorney (how could I? We are just doing our jobs after all). Further, they are similarly simultaneously impressed and repulsed by the fact that I could represent someone who I “knew did ‘it'” (“it” usually means some sort of crime or bad act). Again, it is just part of the job. Part of my task when I lead these sorts of classes is to help the kids realize just what exactly I do and why it is important and, quite frankly, just how one can represent someone “who did it” and why.
It is very clear that for most kids in the classes I have led, their view of life, that is to say “real life” or the life of adults, is shaped and molded by what they see on television and movies and the internet more than it is shaped by the actual adults in their lives. I do not know exactly why this is and why the adults in their lives are not as influential as they could be, but regardless of the cause it certainly makes for a significant challenge for any teacher to overcome the influence of all of these sources of pop culture and replace it with something more meaningful, profound, and, frankly, accurate and reflective of real life.
Although amused by some of their misconceptions, I am often saddened by how intimately some of the kids know about the legal system already at their young ages. Many have been in courtrooms already participating in the litigation for their own custody between their parents. Unfortunately, others have already been invoked with having been arrested for something. These kids almost always wind up asking questions about “their friends” which is, more of often than not” a thinly veiled version of themselves or people the know.
Whenever I do these classes I hope I leave the kids with a better understanding of the legal system and perhaps some inspiration as to what to do with their lives or, as it were, what not to do with their lives. Although I am sure teachers (and speakers like me) will never completely overtake pop culture (one girl in the class knew the exact date of Beyonce’s wedding but her knowledge of basic American civics was, as one may expect, rather light) I hope I leave them with something to think about and consider for their future.
While the traditional marriage rite contains the words or variations of “till death do you part,” unfortunately sometimes marriages part in divorce instead. Sometimes, however, divorce and death nearly overlap; when that happens, how does your property part?
Although the focus of this article is the latest change in Pennsylvania Estate Law which took effect at the end of 2010, it is worth pointing out the change in PennsylvaniaDivorce Law that took effect in 2004. In 2004, Pennsylvania’s legislature passed 23 Pa.C.S.A. Section 3323(d.1) which, in pertinent part, says: “[I]n the event one party dies during the course of divorce proceedings, no decree of divorce has been entered and grounds have been established as provided in subsection (g), the parties’ economic rights and obligations arising under the marriage shall be determined under this part rather than under 20 Pa.C.S. (relating to decedents, estates and fiduciaries).” In essence, if divorce grounds are established, the marital property will be divided through equitable distribution as opposed to passing through the decedent spouse’s estate as if no divorce had been filed. 23 Pa.C.S.A. Section 3323(d.1) helped clarify and streamline the division of marital property when one spouse dies, and draws a bright line when equitable distribution takes effect.
As a point of clarification, grounds for divorce are typically based on the consent of the parties under 23 Pa.C.S.A. Section 3301(c), or if the parties have been separated for two (2) years under 23 Pa.C.S.A. Section 3301(d). Therefore, if both parties have executed an Affidavit of Consent under Section 3301(c), or an uncontested Affidavit Under Section 3301(d) has been filed, and the Court entered an order approving divorce grounds under one of those sections, then 23 Pa.C.S.A. Section 3323(d.1) applies and the marital property would be divided through equitable distribution if one of the divorcing spouse’s dies. Otherwise, the property of the divorced spouse proceeds through typical estate law as if no divorce action had been filed at all.
Despite the enactment of 23 Pa.C.S.A. Section 3323(d.1), which modified divorce law, there was still the possibility of a conflict between divorce law and estate law. While 23 Pa.C.S.A. Section 3323(d.1) made it clear that equitable distribution controls the marital property of the parties after divorce grounds are established, it made no mention of the possibility of any attempt by the surviving spouse to elect against the will of the decedent spouse or attempt to collect inheritance under the terms of the decedent spouse’s estate.
In order to close this potential loophole, the Pennsylvania legislature passed 20 Pa.C.S.A. 2106(a)(2) to modify estate law to make it consistent with 23 Pa.C.S.A. Section 3323(d.1)’s modification of divorce law. 20 Pa.C.S.A. 2106(a)(2) reads: “[A] spouse shall have no right or interest under this chapter in the real or personal estate of the other spouse if: (i) the other spouse dies domiciled in this Commonwealth during the course of divorce proceedings; (ii) no decree of divorce has been entered pursuant to 23 Pa.C.S. § 3323 (relating to decree of court); and (iii) grounds have been established as provided in 23 Pa.C.S. § 3323(g).” Under 20 Pa.C.S.A. 2106(a)(2), once divorce grounds are established by the court, as described above, the entitlement of the surviving spouse to any part of the estate of the decedent spouse is completely severed, except regarding the exception described below, leaving equitable distribution the sole and exclusive remedy to the surviving spouse to any of the decedent spouse’s property. Indeed, 20 Pa.C.S.A. 2106(a)(2) functions to modify the decedent spouse’s will to revoke any provision to pass any property to the surviving spouse. The only exception to 20 Pa.C.S.A. 2106(a)(2) is when the decedent spouse specifically and explicitly indicates that his/her intention is to provide certain property to the surviving spouse regardless of the entry of divorce grounds or decree in divorce.
Finally, 20 Pa.C.S.A. 2106(a)(2) makes it clear that if divorce grounds have been established, the surviving spouse will no longer be entitled to any life insurance policies, pensions, annuities, and other sort of similar benefits of the decedent spouse.
To sum up, 20 Pa.C.S.A. 2106(a)(2) served to make estate law consistent with 23 Pa.C.S.A. Section 3323(d.1) in divorce law and, when both are applied, they each serve to ensure that, for all intents and purposes, if divorce grounds are established, the only route the surviving spouse has available to secure property from the decedent spouse is via equitable distribution.
This article also appeared in the Philadelphia Bar Association’s Upon Further Review on June 10, 2011 and can be found on my website here. This article wasd also reprinted in Volume 33 Issue No. 3 (September 2011) of Pennsylvania Family Lawyer.
For those who have been following my writing for any length of time will know that I am very much opposed to the Pennsylvania laws allowing red light cameras which currently litter Philadelphia intersections.
If you want to check it out, my other pieces on this subject include:
Well it looks like Ohio has a similar law regarding these red light cameras which was appealed all the way to its Supreme Court and the Ohio Supreme Court had the good sense to strike down the Ohio Red Light Camera law and unconstitutional. I found a recent article on this subject here.
Hopefully someone here in Pennsylvania will recognize that the red light cameras are just not bad public policy, and rather poorly disguised money making enterprise for the state, but also clearly unconstitutional as they turn the American axiom “innocent until proven guilty” on its head.
Now that Ohio has cleared the way for the red light camera law to be struck down, hopefully some driver in Pennsylvania “caught” by these camera will have the courage and wherewithal to take the Pennsylvania law to our own Supreme Court for review!
Last night was yet another great night at the Clinic. I had to miss last month’s Clinic due to the birth of my son Henry. I am not sure if it is because of the weather or the work we’re doing or what but last night saw 4 attorneys/paralegals serving eight people! Eight people in one session is a recent high and I hope we can continue serving so many, if not more, in the future.
We had a pretty neat case come last night too that I am helping with that I am rather interested to see how it all works out. Basically a man died and his pension has a survivor benefit to pay out to his spouse. Although he was marred in the sixties and never got divorced, he got “married” again in the 90’s (or so) to some other woman. This other woman is now posing as his spouse to collect the pension. I think the case is pretty clear that his “first” wife is clearly his only wife but I am interested to see what arguments wife number two presents to try and justify collecting the spousal survivor benefit to his pension. This should prove to be rather intriguing!