Written by attorney April Marie Townsend

Death During Divorce

Pennsylvania passed a law in 2005 providing for equitable distribution of marital property when one of the spouses dies during the pendency of the divorce and certain conditions are met. Previously the death of a spouse during the pendency of a divorce proceeding abated the divorce action. Now 23 Pa.C.S. 3323 creates an exception where grounds for divorce have been established, such that the parties’ economic rights are determined under equitable distribution principles rather than elective share provisions of the Probate Code.

Applicable Law: 23 Pa.C.S. 3323

(d.1) Death of a Party: In 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.)

(g) Grounds Established: For purposes of subsections (c.1) and (d.1), grounds are established as follows:

(1) In the case of an action for divorce under section 3301(a) or (b) (relating to grounds for divorce), the court adopts a report of the master or makes its own findings that grounds for divorce exist.

(2) In the case of an action for divorce under section 3301(c), both parties have filed affidavits of consent

(3) In the case of an action for divorce under section 3301(d), an affidavit has been filed and no counter-affidavit has been filed OR, if a counter-affidavit has been filed denying the affidavit’s averments, the court determines that the marriage is irretrievably broken and the parties have lived separate and apart for at least two years at the time of the filing of the affidavit.

If you are in a situation where a party to the divorce dies before the divorce is final and grounds are established as outlined in the statute, the personal representative of the deceased party's estate should be substituted as the plaintiff or defendant in the action and you should proceed to equitable distribution in normal course. It may be necessary to stay probate under the deceased party's will until such a time as equitable distribution can be completed if there is a concern that marital assets may be distributed to third parties under the deceased party's will. Alternatively, you can petition the court to freeze marital assets until equitable distribution is complete. Be advised, however, that the equitable distribution of the marital assets will conclude the matter as the courts will not grant a posthumous divorce decee.

– see Taper v. Taper, 2007 PA Super 397, 939 A.2d 969 (Pa.Super. 2007); Yelenic v. Clark, 2007 PA Super 104, 922 A.2d 935 (Pa. Super. 2007); Gerow v. Gerow, 2008 PA Super 277, 962 A.2d 1206 (Pa.Super. 2008)

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