One the most basic legal principles is that statutes of limitations establish the time frames in which a civil suit can be brought in a given case and any attempt to bring suit outside of that time frame will inevitably result in the case being dismissed. For example, the statute of limitations for a personal injury matter is two years from the date the injury is, or should be, discovered (see: 42 Pa.C.S.A. §5524(1), (2), and (3)) and, for the most part, bringing a personal injury matter beyond that two year deadline will be cause to dismiss the claim.
One of the possible exceptions to the application of statutes of limitations is if the defendant dies during the pendency of the limitations period. As with any complaint, it is the duty of a plaintiff “to use all reasonable diligence to properly inform himself of the facts and circumstances upon which the right of recovery is based and then institute suit within the prescribed period,” and that includes determining whether the defendant is living or dead at the time of suit. Lange v. Burd, 800 A2d 336 (Pa.Super. 2002).
Generally speaking, a dead person cannot be sued or be a party to an action Montanya v. McGonegal, 757 A.2d 947 (Pa.Super.2000); Lange v. Burd, 800 A2d 336 (Pa.Super. 2002). However, 20 Pa.C.S.A. §3383 carves out an exception to this general rule permitting a dead person to be sued within one year after his death. §3383 goes on to say that its terms ought not be construed to shorten a two year statute of limitations period. Therefore, hypothetically speaking based on the above, if someone died on the day a plaintiff discovered his injury, then the plaintiff would have two years to bring suit against the deceased. At the other end of the spectrum, if someone died on the last day of the two year statute of limitations, then the plaintiff would have an additional year to bring suit against that defendant (for a total of three years). Finally, if someone died during the statutory two year period, the last date a plaintiff could bring suit against the deceased could be either the last day of the two year statutory period or the last day of the one year period stated in §3383 above, whichever came later. Longo v. Longo v. Estep, 289 Pa.Super. 19 (1981); Rylee et ux. v. Nicoll’s Administrator, 74 Pa.D.&C. 269 (1950); Telford Coal Company v. Prothero et al., 24 Pa.D.&.C. 183 (1935).
After considering the above, the obvious question arises as to whether one can substitute another party (e.g.: an estate) for the deceased defendant in order to pursue a plaintiff’s claims. According to applicable case law, one may bring suit against a decedent’s estate in order to pursue claims that would have otherwise been against the decedent himself if he were alive. If a complaint is filed against a deceased person, it must be withdrawn and refiled against his estate instead. Montanya v. McGonegal, 757 A.2d 947 (Pa.Super.2000). The refiled complaint against the estate is subject to the same applicable statutes of limitations stated above for the decedent. See Montanya. The filing of a complaint against the deceased, instead of his estate, does not serve to toll the running of statutes of limitations described above in order to permit an action against the decedent’s estate after the expiration of statutes of limitations described above. See Lange.
The only way around the above statutes of limitations is to argue that there was some sort of fraud or intentional concealment of the death of the defendant which served to unfairly prejudice plaintiff in his attempt to bring suit. See Lange. The plaintiff does not have to prove that fraud or concealment was intentional, just simply that the opposing party’s conduct served to conceal the death of the defendant. See Montanya. When arguing that the opposing party committed fraud and/or concealed the death of the defendant, it should be noted that silence on the part of the opposing party is insufficient to constitute fraud or concealment. As a result, an insurance company or party failing to volunteer the information that the defendant is dead at any time – or even accepting service for the deceased at his residence – during the life of the claim and/or suit will not constitute fraud or concealment. See Montanya. The fraud or concealment must be the result of an affirmative action; consequently a passive action (e.g.: taking no action at all) is not an affirmative action. See Montanya. Moreover, the plaintiff has the burden of proving the fraud and/or concealment with clear and convincing evidence.
Although Pennsylvania law may provide a case with a little more life after the death of a defendant, ultimately statutes of limitations will apply to kill a case even if the death of a defendant did not do it already.
Originally published on June 24, 2014 in The Legal Intelligencer Blog and can be seen here.
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.