July 29, 2024

By: Robert D. Weinberg

Imagine this scenario: you represent an elderly client who is in a tenuous marital relationship. Worse, the client’s cognitive functioning is declining. And the client’s longtime home, which was acquired during the marriage, is not titled in that client’s name, although the property has a substantial marital value. Under the Divorce Code, your client has a valuable marital interest in the residence that will evaporate if the client passes away prior to the marital interest being solidified in the divorce process. What is your advice? Should the client pursue a divorce? Can the client pursue a divorce? The topics of competency and competency to pursue a divorce are both important matters which could occupy multiple hours of CLE training. For the Superior Court’s take on these concerns, see its trenchant opinion in Berry v. Berry, 197 A.3d 788 (2018).1 are The first consideration is whether the client is better off under the Probate, Estates & Fiduciaries Code (“PEF Code”) or under the Divorce Code. Under the PEF Code, married individuals have important rights and entitlements that are altered once grounds for divorce are established in a divorce action 2; conversely, there are interests that exist only under the divorce code that may vanish if a person dies before divorce grounds have been established.

Start with the principle that a divorce action abates when a party dies unless grounds for divorce have been established. Grounds can be established in three ways under the Divorce Code:3 1) the court adopts the recommendations of a hearing officer 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.

If grounds for divorce have not been established, then under the PEF Code, a surviving spouse has several rights. If there is no will, the surviving spouse has rights of intestate succession. If there is a will, the surviving spouse may exercise a spousal election – that means taking a 1/3 share of a pool of assets designated by the statute. And, if there was a will naming the surviving spouse as beneficiary, its terms would otherwise apply, so long as the interest under the will is greater than the spousal elective share.

Once divorce grounds are established, several important legal implications arise. First, instead of proceeding in Orphans’ Court under the PEF Code, any economic claims will be resolved in family court under the Divorce Code. The estate would “stand in the shoes” of the deceased spouse and pursue his or her economic interests as if he or she were alive.

The establishment of divorce grounds has other implications for planning purposes:

1. Any provision of a decedent’s will that favors the spouse becomes ineffective for all purposes 4;

2. Unless clearly designated to survive the divorce, any conveyance which was revocable by the conveyor at the time of the conveyor’s death which was to become effective after death is revoked 5; and

3. Unless clearly designated to survive the divorce, any designation of a life insurance policy, annuity, contract, pension, profit-sharing plan, or other contractual agreement for payments to a spouse which names a spouse as beneficiary is revoked.6

Under the scenario raised above, the client’s (and the client’s estate’s) monetary interest in the marital residence exists only pursuant to the Divorce Code; if grounds for divorce are not otherwise established, upon the client’s passing, the residence will remain the sole property of the surviving spouse, in whose name the property is titled. The client’s estate will thus be deprived of the entirety of this value, which may have a profound impact on the client’s progeny.

This example is illustrative, but it is based on a real case, and these circumstances are readily subject to repetition. Careful planning, and an understanding of the interplay between the PEF Code and the Divorce Code, are thus critical to representing any client in declining health (and in a declining marriage), to avoid a disastrous potential outcome.

1 The Superior Court vacated a divorce where both parties were not competent and were “represented” in the divorce action by individuals who had powers of attorney (this case further stands for the proposition that a power of attorney cannot litigate a divorce action for an incompetent individual). The Superior Court opined that “[i]n divorce proceedings…an allegedly incompetent petitioner must be appointed a guardian ad litem and must be ‘capable of exercising reasonable judgment as to personal decisions, understands the nature of the action and is able to express unequivocally a desire to dissolve the marriage.’” 197 A. 3d, at 804 (citation omitted). 2 Notably, filing a divorce complaint revokes the designation of a spouse as an agent under a power of attorney unless the power of attorney specifically states that it survives such a filing.

20 Pa. C.S.A. Section 5605(c). 3

23 Pa. C.S.A. Section 3323(g). 4

20 Pa. C.S.A. Section 2507(2). 5

20 Pa. C.S.A. Section 6111.1. 6

20 Pa. C.S.A. Section 6111.2(a)(3).

Reprinted with permission from the July 26, 2024 edition of the Lawyers Journal. All rights reserved.