By David J. Draganosky, Esquire and_Emily E. Farris, candidate for Juris Doctor, May 2020

David DraganoskyScarlett O’Hara, the protagonist in Margaret Mitchell’s novel, Gone with the Wind, exclaimed “Death, taxes and child birth!  There’s never any convenient time for any of them.”  Certainly, Scarlett O’Hara’s words regarding death ring true when a party to a divorce dies before the entry of a final decree.

In Pennsylvania, prior to January 2005, if a party to a divorce died prior to the entry of a final decree, then the action automatically abated.  In other words, the rights and obligations of both the surviving spouse and the deceased spouse’s estate would be determined as though the parties were still married and never separated according to Pennsylvania estate law.

In January 2005, however, legislation became effective which provided that if one party dies during the course of divorce proceedings in which a final decree has not been entered, but valid grounds for divorce have been established, then the parties’ economic rights and obligations arising under their marriage shall be determined according to the Divorce Code.  Of particular importance, the above referenced legislation is limited to determining economic rights and obligations (i.e. division of assets and liabilities) and does not authorize the entry of a divorce decree posthumously.  In such cases, the personal representative (i.e. the administrator or executor of the deceased spouse’s estate) is substituted as a party for the deceased spouse and the action proceeds solely with respect to the parties’ economic rights and obligations arising under the marriage.

Assuming a party to a divorce action dies before the entry of a final decree, the question then becomes whether or not divorce grounds have been established.  If not, then the divorce action abates.  Divorce grounds can be established in Pennsylvania either on a fault or a no-fault basis.  To establish valid fault grounds, the court must conclude that grounds for divorce exist relating to the following: (1) willful and malicious desertion; (2) adultery; (3) cruel and barbarous treatment; (4) bigamy; (5) imprisonment for a term of 2 years or more upon conviction of a crime; (6) intolerable indignities to the innocent and injured spouse; or (7) institutionalization for at least 18 months preceding the action.

Grounds for divorce can also be established on a no-fault basis if both parties properly file Affidavits of Consent prior to the deceased spouse’s death, or if one of the parties properly files and serves an Affidavit alleging that the marriage is irretrievably broken and the parties have been living separate and apart for a period of at least one year, to which the other party fails to timely object.  Or, if an objection is timely filed, no-fault divorce grounds are established if the court determines that the marriage was irretrievably broken and the parties lived separate and apart for at least one year at the time of filing the one-year separation Affidavit.

Curiously, from January 2005 until July 2015, there was a loophole which permitted a surviving spouse who filed for divorce (i.e., as the plaintiff), to withdraw his or her divorce complaint and discontinue the action, and thereby avoid the determination of the parties’ economic rights and obligations arising under the marriage pursuant to the Divorce Code, even after divorce grounds were established.  That loophole was closed in July 2015 when the Pennsylvania Rules of Civil Procedure were amended to include language which prohibits the surviving spouse from withdrawing his or her divorce complaint unless the deceased spouse’s personal representative consents.  Furthermore, if no personal representative has been appointed within one year of the deceased spouse’s death, then, upon motion of the surviving party, the court may allow the withdrawal or dismissal of the divorce complaint and/or any pending economic claims.

So, assuming that one party to a divorce action dies, why would the surviving spouse care whether or not the parties’ economic rights and obligations are determined according to the Divorce Code or according to Pennsylvania estate law?  The answer is simple.  If the parties’ economic rights and obligations are determined according to the Divorce Code, then the surviving spouse stands to get less.  For instance, if the parties own a house as joint tenants with a right of survivorship or tenants by the entireties, then the surviving spouse, if the Divorce Code does not apply, will automatically receive the entire house upon the deceased spouse’s death.  However, if the Divorce Code does apply, then the court can award part of the house, or even all of it, to the deceased spouse’s estate.

Here is where things get interesting.  The Divorce Code provides a list of eleven factors that the court is required to consider when determining the division of marital property.  A full list of the factors can be found at 23 Pa. C.S.A. Section 3502(a) (https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=23&div=0&chpt=35&sctn=2&subsctn=0).  However, of the eleven factors, many of them no longer apply or become extremely difficult to evaluate when one of the parties is deceased.  For instance, some of the factors that are no longer applicable or are very difficult to evaluate include the following:

(1)       The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties;

(2)       The opportunity of each party for future acquisitions of capital assets and income;

(3)       The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits; and

(4)       The economic circumstances of each party at the time the division of property is to become effective.

So, how do courts evaluate these factors when one party to a divorce action is deceased?  The answer to this question varies, as the procedure is not defined by law and there is little uniformity among the masters and judges across the state on this issue.  The reality is that the outcome will depend on the master or judge who is deciding the case, and the argument/persuasiveness of legal counsel.  The divorce and family law attorneys of Shemtob Draganosky Taylor, PC can assist with all of your family law matters including the division of assets in a divorce action when one of the parties is deceased.  Contact our family lawyers in Montgomery County at (215) 542-2105 for a confidential discussion.

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