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Devotees of the probate code are well aware that 20 Pa. C.S. Section 6111.2 provides that if a former spouse passes away and is either divorced or grounds for divorce[1] have been established, then any beneficiary designation by the deceased ex-spouse in favor of the surviving ex-spouse is deemed ineffective unless the deceased ex-spouse makes clear in an updated designation or in a court order or written contract that the designation was intended to remain effective.
Effective May2, 2023, the Pennsylvania Legislature updated the Divorce Code to require every divorce decree to reference the probate code as follows:
An order accompanying a decree of divorce or annulment of the marriage shall include a provision informing the parties to reaffirm or change the beneficiary status on an existing life insurance policy, annuity contract, pension, profit-sharing plan or other contractual arrangement providing for payment to the spouse if it is the intention of one of the parties to keep or change the other party as a beneficiary. The provision shall also warn the parties that failure to do so may result in revocation of the beneficiary designation pursuant to 20 Pa.C.S. § 6111.2 (relating to effect of divorce or pending divorce on designation of beneficiaries). The provision shall be a form as may be prescribed by general rule.
This language is extremely important in any pending divorce action, especially now that the Allegheny County Court of Common Pleas requires parties to obtain an order establishing grounds for divorce before the Court will hold a final hearing to determine the economic issues arising from the divorce.
In other words, there will now be a gap between the establishment of grounds for divorce—which would revoke beneficiary designations without a further writing—and when the Court issues a final determination as to how assets will be distributed.
As an example, consider a basic pension plan interest. Prior to divorce, the party who does not own the interest would typically be designated as a beneficiary of the owner spouse; if the owner spouse passes away after divorce grounds are established but before the Court establishes the non-owner’s interest by way of a written order, the non-owner’s interest disappears.
There will now be an automatic gap between the date grounds are established and a final resolution where beneficiary designations will be automatically revoked unless the parties take protective measures—such as requesting a consent order or other writing that maintains or preserves beneficiary designations where appropriate pending the final resolution of all economic claims in the case.
It is thus critical that any divorce litigant be cognizant of the impact of a divorce (or grounds for divorce becoming established) on any beneficiary designation and to have a plan well in advance to manage these circumstances in the preferred manner.
[1] Grounds can be established in three ways under the Divorce Code:[1] 1) the court adopts the recommendations of a master or makes its own findings that grounds exist; 2) both parties have filed affidavits consenting to the entry of the divorce decree 90 days after service of the divorce complaint; or 3) one party has filed and served a 3301(d) affidavit averring that the separation has continued for more than one year prior to the filing AND the other party has not filed a counter-affidavit contesting the period of separation.