Divorce After Death?

Adam S. Bernick, Esq. on 12/08/2009

About The Author

Law Offices of Adam S. Bernick

Contact Adam S. Bernick, Esq.

More by
Adam S. Bernick, Esq. »

            Historically, when a husband and wife were in the process of being divorced and one died their status remained as if married, and division of the probate marital property would occur under the probate rules of Title 20.  Effective January 28, 2005, the foregoing changed, and equitable distribution under certain circumstances may now occur even after one of the spouses has died.

            Title 23 now provides that “[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).”  23 Pa.C.S.A. § 3323(d.1).   The Official Note indicates that the primary reasons for the changes is so that parties who are divorcing would need not choose between equitable distribution or electing against the Will of the other spouse.  Indeed, the Official Notes state that “[T]he parties' economic rights and obligations are determined under equitable distribution principles, not under the elective share provisions of Chapter 22 of Title 20 (Decedents, Estates and Fiduciaries Code).”  Importantly, the change to Title 23 leaves several questions unanswered, that have yet to be clarified by the courts.

            It is universally accepted that a divorce decree cannot be entered, regardless of the approval of the divorce grounds, when one of the spouses in the divorce action dies, because a divorce action abates immediately upon the death of one of the parties.  The changes to 23 Pa.C.S.A. § 3323(d.1) does not alter the foregoing.  Taper V. Taper, 939 A.2d 969 (Pa. Super., 2007), Yelenic v. Clark, 922 A.2d 935 (Pa. Super., 2007), In Re Estate of James A. Bullotta, Jr., 838 A.2d 594 (Pa., 2003).  Therefore, regardless of the approval of divorce grounds, the parties remain married.  

            If the parties remain married, regardless of grounds of divorce being established, then any item of property that passes by law to the surviving spouse, because they are the surviving spouse, must supercede equitable distribution.  Of particular note are retirement plans, such as IRA or 401(k) plans that are generally governed by ERISA, which of course is a federal statute that does not fall within Title 20.  Frequently, pension plans stipulate that if a spouse is named as a beneficiary, their name cannot be removed without their consent.  The same might be the case for life insurance provided as an employment benefit through the decedent’s employer.  Likewise, a tenancy by the entireties is created and governed by common law and not Title 20.  Consequently, assets passing outside Title 20 may not be subject to equitable distribution after the death of a spouse.  

            23 Pa.C.S.A. §3323(d.1) did not take effect until January 28, 2005.  Left unresolved is whether the change to Title 23 effects parties who separate prior to the effective state of the statute, and whether the change to Title 23 should be applied to parties when one of the parties filed for divorce prior to the effective date of the statute.  Under 1 Pa.C.S.A. §1926, no statute is to be considered retroactive unless it is clearly and manifestly so intended by the General Assembly.  Indeed, “in the absence of clear language to the contrary, statutes must be construed to operate prospectively only.”  Budnick v. Budnick, 419 Pa.Super. 172, 615 A.2d 80 (Pa.Super.,1992.)  citing Flick v. Flick, 408 Pa.Super. 110, 115-117, 596 A.2d 216, 219-220 (1991).  There is nothing in §3323(d.1) that even hints at retroactive effect; therefore the statute may not apply to those individuals who separated prior to January 28, 2005.                        

            Attorneys who practice in the field of family law should be aware that if the parties separated after January 28, 2005, and one of the spouses is ill, consideration should be made to obtaining a finding of grounds for divorce, depending on the assets involved and how they are held.  Those attorneys who practice in the field of estate law need to make certain they are aware of this change in the law, the need to update wills, and the need to check the records of the Register of Wills to determine if a Personal Representative is appointed.  Consideration should be made to filing an informal caveat to block probate of any will, and a formal caveat then filed and a petition filed to appoint an independent administrator pendente lite to marshal the assets of the deceased spouse’s estate, to ensure that the other spouse is not left with nothing.