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Dying to Get Divorced

Divorce is always a trying time for those going through it, but, in some cases, that time can be exacerbated by the death of one of the parties in the process of divorce. When someone dies in the midst of divorce, the property owned by that person slips into a sort of limbo between being subject to the divorce litigation and also to the law surrounding estates, inheritances and probate.


Luckily, the Pennsylvania legislature in recent years has clarified precisely how divorce law interacts with estate law in order to prevent the collision, and eventual gridlock, from two competing areas of the law potentially applicable to the same property.


23 Pa.C.S.A. Section 3323(d.1) has established that if a divorce litigation is pending and grounds are established before a party to a divorce dies, then the equitable distribution process under divorce law will apply to the property to which the decedent may be entitled and the divorce litigation will proceed as if the decedent were still alive, with his estate, of course, taking his place as a party in the litigation. Divorce grounds are established, for example, if both parties to the divorce execute Affidavits of Consent (pursuant to 23 Pa.C.S.A. Section 3301(c)), or an uncontested Affidavit Under Section 3301(d) is filed, and the court enters an order approving divorce grounds. Without the establishment of divorce grounds, the divorce matter would terminate upon the death of one of the parties and the otherwise marital property becomes subject to standard applicable estate law.


Although 23 Pa.C.S.A. Section 3323(d.1) was helpful in reducing potential conflicts of law when a divorce litigant died, it did not resolve the potential for the surviving spouse to attempt to elect against the decedent spouse’s estate and/or collect the potential inheritance from his estate regardless of the divorce. The Pennsylvania legislature closed this loophole via 20 Pa.C.S.A. Section 2106(a)(2), in order to coordinate with 23 Pa.C.S.A. Section 3323(d.1), which makes it clear that once divorce grounds are established, and a party to that divorce dies, a surviving spouse may not employ estate law at all to secure the decedent spouse’s property; the property is exclusively subject to equitable distribution per the divorce and is not subject to inheritance law, nor can a surviving spouse attempt to elect against the decedent spouse’s estate. In fact, 20 Pa.C.S.A. Section 2106(a)(2), by its language, serves to render any provision in the decedent spouse’s will granting the surviving spouse’s property revoked and/or invalid unless the decedent spouse’s will specifically indicates that the inheritance survives divorce. Further, 20 Pa.C.S.A. Section 2106(a)(2) also serves to eliminate a surviving spouse’s entitlement to any life insurance policies, pensions, annuities, and/or similar benefits unless specifically permitted via the divorce matter.


In terms of the applicability of the above statutes, nothing in them suggests that they would be applied retroactively to parties who separated and/or filed for divorce prior to their enactment. It would seem, based on 1 Pa.C.S.A. Section 1926 and cases like Budnick v. Budnick, 419 Pa.Super. 172 (1992), that the applicability of the statutes described above is not retroactive, but exclusively prospective.


Finally, the fact that the statutes described herein allow for a divorce to be litigated after the death of one of the parties leads one to the obvious question of whether someone could be divorced after his own death. This question was at issue within the case of Taper v. Taper, 939 A.2d 969. Taper involved the application of 23 Pa.C.S.A. Section 3323(d.1) after a party to a divorce died after the approval of divorce grounds. The Court ruled that despite the fact that the decedent spouse’s property is subject to equitable division under the divorce action, and a court is then empowered to distribute a decedent spouse’s marital property as if he were alive and litigating the divorce, a court is simply not empowered to enter a decree in divorce posthumously. Although this seems counterintuitive, the Court noted that while it has statutory authority to divide property posthumously through divorce procedures, the legislature gave no such companion authority to enter a divorce decree posthumously.


Litigating a divorce can be tricky enough when the litigants are alive and the death of a party can certainly complicate matters even further. Hopefully the cases and statutes described above can help make the process a little easier and more predictable.

Originally published in The Legal Intelligencer Blog on March 26, 2014 and can be found here and was reprinted by the Pennsylvania Family Lawyer, Volume 36, Issue No.: 2, June 2014 edition.

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One thought on “Dying to Get Divorced

  1. Pingback: A Collection of Family Law Writings by James W. Cushing, Esquire | judicialsupport

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