LEGAL GUIDE
Written by attorney Michelle C. Berk | Apr 4, 2011

Update on Death and Divorce

UPDATE ON DEATH AND DIVORCE PURSUANT TO RECENTLY ENACTED ACT 85 of 2010 Act No. 85 was approved by the Governor of Pennsylvania on October 27, 2010, after being amended three times. Like taxes, death and divorce never go away and impact every area of the practice of law. That is the reason why a member of the Probate and Tax Section was requested to provide this update on Senate Bill 53 (Act. 85 of 2010) which amends Titles 15 and 20 relating to the effect of the death of a party during Divorce proceedings. Senate Bill was 53 was proposed by our very own Montgomery Bar Association member, Senator Stewart J. Greenleaf. The Bill begins by making what amounts to two changes to 15 Pa.C.S.A. Statute 5547 (b) and Section 5548 (b) (Corporations and Unincorporated Associations) identical in nature and both making reference to Chapter 77, D of Title 20, (Decedents, Estates and Fiduciaries) also known as the PEFCode. The remainder of the Act not referenced herein amends other sections of the Title 20 dealing with duties, responsibilities and notices of personal representatives and regarding trusts. Senate Bill 53 (Act 85 of 2010) makes the following changes to Title 20 (Decedents, Estates and Fiduciaries): 2106. Subsection a(2) (Forfeiture) is a new section added to provide that a spouse has no right or interest in the real or personal property of the Estate of the other spouse if the other spouse dies during the course of divorce proceedings, or, if no divorce decree has been entered and the grounds for Divorce have been established. ? 2507 Paragraph (2) (modification by circumstances) is amended to provide that a provision in an testator's Will, in favor of the testator's spouse, becomes in ineffective if the testator dies during the course of the divorce proceedings and no divorce decree has been entered and the grounds have been established. However, this is not operative, if it appears from the Will that the provision for the Testator's spouse was intended to survive a Divorce. An initial inquiry may be to the effect of, what are the "grounds" referred to in the amendments? In Title 23Pa.C.S.A. ?3323 of the Divorce Code the grounds must be established to obtain a decree in divorce and can be established in several ways depending of the type of divorce filed which depends upon the length of separation of the parties prior to filing the Complaint in divorce and other factors. In this Section of the Divorce Code, grounds can also be established in the case of an action for Divorce under Section 3301 (a) or (b) where the Court adopts a report of the Master and makes its own findings that grounds for Divorce exist. When there is a deceased party to the divorce, the grounds are established in action for Divorce under Section 3301(c) where both parties have filed Affidavits of Consent. In a case of an action for divorce under Section 3301 (d), where 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. Sections 2106 (a) and 2507 (2) of Title 20 are amended and set forth below as follows: 2106. Forfeiture. (a) Spouse's share. (1). A spouse, for one year or upwards previous to the death of the other spouse, has willfully neglected or refused to perform the duties to support the other spouse, or who for one year or upwards willfully and maliciously deserted the other spouse, shall have no right or interest under this chapter in the real or personal Estate of the other spouse. (2) (this is the additional amended section) 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). Section 2507 is amended as follows: Section 2507. Modification by circumstances. Wills shall be modified upon the occurrence of any of the following circumstances, among others: (2) Divorce or Pending Divorce -Any Provision in a testator's will in favor of or relating to the testator's spouse shall become ineffective for all purposes unless it appears from the Will that the provision was intended to survive a Divorce if the testator: (i) is divorced from such spouse after making the Will; or (ii) dies domiciled in this Commonwealth during the course of divorce proceedings, no decree of divorce has been entered pursuant to 23 Pa. C.S.?3323 (relating to Decree of Court) and grounds have been established as provided in 23 Pa.C.S.?3323(g). The forfeiture provision of Section 2106 amends that Section to provide that a spouse has no right or interest in the estate of the other spouse who has written the Will dies during a pending divorce proceeding and a decree of divorce has not yet been entered but grounds for Divorce have been established, in the event of willful neglect and or desertion. Currently there is no such provision in Section 2106. This provision states that a spouse who, for at least one year, has willfully neglected the other spouse or willfully and maliciously deserted that spouse shall have no right or interest in that spouse's Estate. It will be seen what level of proof will be required to establish and substantiate these allegations. Section 2507 is amended (relating to modification by circumstances), in order to provide that the provisions of a Will shall be modified in the case of divorce or in the case of a pending divorce. In either instance, unless it appears that the provision in the Will was meant to survive the divorce, any provision in favor of other spouse shall be ineffective if the spouses are divorced from each other or even if the decree of divorce has not yet been entered but grounds for Divorce have been established. Previously, Section 2507 only addressed the cases of divorce if the decree of Divorce has already been entered prior to the death of a spouse. Under the new law, if a decree in Divorce has been entered, a provision in a Will in favor of the other spouse will not survive unless that provision was intended to survive the divorce. 20 ?6111.1 (Modification by Divorce). Pending divorce is included in addition to those already divorced. This section is amended to provide that a provision in a conveyance that was revocable by a conveyor at the time of the conveyor's death in favor of or relating to the conveyor's spouse, becomes ineffective if the conveyor dies during the course of divorce proceedings, no divorce decree has been entered and grounds have been established, unless it appears in the governing instrument that the provision was intended to survive a divorce. This section is to provide for conveyances made by spouses who are divorced OR who are in the middle of a divorce proceeding, unless the conveyance was intended to survive the divorce, the conveyance is ineffective if the person is divorced from the spouse after making the conveyance, or if no decree of divorce has been entered and the grounds for divorce have been established. Previously, Section 6111.1 only applied if a decree of divorce is entered. The Section does not dispute the circumstances of a pending divorce and that is what the Amendment is designed to address. Title 20, ? 6111.2 is entitled, Effect of Divorce or pending divorce on designation of beneficiaries. The previous section was amended to provide that in a case of a spouse who dies and has designated the other spouse as a beneficiary of a life insurance policy, pension or profit-sharing plan, the other spouse may not receive proceeds from the life insurance policy, pension plan or profit-sharing plan, if a decree of divorce has been entered or if divorce proceedings are pending. In such a case, the former spouse or soon to be former spouse, is treated as if he or she pre-deceased the other spouse, unless the designation regarding payments was intended to survive the divorce, based upon a court order or wording of the instrument. Currently, Section 6111.2 of Title 20 only speaks to the circumstances of a decree of divorce being entered. In such a case, the contract of a spouse in a pending divorce whose beneficiary designation provided benefits to the other spouse, whether the contract is for life insurance, pension, or a profit-sharing plan, becomes and ineffective beneficiary designation, unless it is clear that the contract was intended to survive the divorce. The changes to these Sections reflect existing law. Act 175 of 2004 amended both Title 23 of the Divorce Code and Title 20 of the Tax Code to indicate that if the grounds for Divorce had been established and a party dies, then Title 23 is to be followed. Previously, Act 175 of 2004 should have referenced these Sections, but it did not. Michelle C. Berk ,Member Probate and Tax Section and Co-Chair of Elder Law Committee of the MBA

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