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Till Death Does Your Stuff Part

James W. Cushing, Esq. on 6/10/2011

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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 Pennsylvania Divorce 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.


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  • 11/22/2013 by Anonymous

    The surviving spouse has one protection that NO State Law can override, which is ERISA statute, a Federal Law that preempts ANY AND ALL State Law…Mandatory that a spouse is automatically the sole beneficiary of all Qualified Retirement Plan Pensions, if a final divorce decree has not been filed by judge or a QDRO (Qualified Domestic Relations Order) has not been signed, accepted and approved by Pension Plan Administrator. This law protects surviving spouses from being alienated by the other spouse (during a divorce) from changing beneficiary designations to someone other than their spouse. Even if surviving spouse name as beneficiary were removed off of any qualified pension plan ie: Defined Benefit Plan, Defined Contribution Plan, 401-k Plan, Profit Sharing Plan or an ESOP (Employer Stock Option Plan) and some others are considered Qualified Plans that are governed under ERISA and have all the protections afforded to the surviving spouses that find themselves going through a divorce and their spouse dies before their divorce becomes final or before they went through an Equitable Distribution Trial process.

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