Effect of Death on a Divorce: Can the Spouse take under the Decedents Will or is the Spouse Limited?

With a divorce rate above 50%, the inevitable sometimes occurs. During the divorce proceeding, one spouse dies. The affect of this situation can lead to a complex interaction between the Divorce Code and the Estate Code. Because there are so many different possibilities, I will briefly lay out the possible scenarios and likely effect on the surviving spouse.

Divorce Granted: Under 20 PA.C.S. 2507, Modification by Circumstances, “If testator is divorced from the bonds of matrimony after making a will, any provisions in the will in favor of or relating to his spouse so divorced shall thereby become ineffective for all purposes unless it appears from the will that the provision was intended to survive the divorce.” 20 PA.C.S. 2507(2). Furthermore, in somewhat similar terms, 20 PA.C.S. 6111.1, Modification by Divorce, states, “If the conveyor is divorced from the bonds of matrimony after making a conveyance, any provision in the conveyance which was revocable by him at the time of his death and which was to take effect at or after his death in favor of or relating to his spouse so divorced shall thereby become ineffective for all purposes unless it appears in the governing instrument that the provision was intended to survive the divorce.” “Connveyance” is the creation of an interest in real or personal property whether intended to have inter vivos or testamentary operation and includes the exercise of a power of appointment. 20 PA.C.S. 6101. Thus, if the Divorce has been granted, the surviving spouse will be limited to the divorce agreement, even if, the surviving spouse is mentioned in the Will, unless the Will makes clear that the provision is intended to be enforceable after divorce.

Settlement Agreement Reached, but not Carried out (no divorce yet decreed): In re: Estate of Bullotta, 575 Pa. 587 (Pa. 2003), the PA Supreme Court was faced with the issue of a pending divorce, where a settlement agreement was reached and the trial court entered a consent order setting forth the terms of their agreement, which provided the divorce could be finalized when the terms of the settlement were completed. Unfortunately, husband died before all those terms were carried out, and no final divorce decree was entered. The PA Supreme Court held that, “Once such a contract is made, though fulfillment may be delayed until entry of the final divorce decree, the contract is still enforceable.” (Id. at 592). The Court went on to deny the Wife’s claim that the contract was executory, and unable to be completed since the husband died, and stated, “The agreement is still enforceable though the parties may no longer divorce.” (Id.) The Court continued, “In other words, if the contract can be completed by the estate of a party, it is not void due to the death of a party.” Thus, the Court denied the Wife’s plea to set aside the settlement agreement.

Possibility of Judicial Estoppel: There appears to be a possible avenue, extremely fact specific, that may allow an estate to prevent a soon-to-be ex-spouse from bringing a claim at odds with a previous claim. As a general rule, a party is estopped from “assuming a position inconsistent with his or her assertion in a previous action,” if the party is successful in maintaining that action. In re: Estate of Bullotta, 575 Pa. 587 (Pa. 2003)(citing Trowbridge v. Scranton Artificial Limb Co., 560 Pa. 640, 747 A.2d 862, 864 (Pa. 2000)). The purpose of the doctrine is to “protect the integrity of the courts by preventing litigants from ‘playing fast and loose’ with the judicial system” by switching positions as required by the moment. (Id.) While the majority opinion In re: Estate of Bullotta didn’t decide the outcome on the Judicial Estoppel claim, Chief Justice Cappy, in a concurring opinion (joined by Justice Castille and Nigro), said that the case should be disposed of by Judicial Estoppel. Specifically, since the wife had filed a Petition to Enforce the Settlement Agreement, in the divorce proceeding, she should be estopped from now claiming a portion of the estate, other than that agreed to in the settlement agreement.

No Divorce Decree but Grounds Established: Under 23 PA.C.S. 3323(d.1), the section of the Domestic Relations title regarding Divorce, “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 [AKA the divorce code] rather than under 20 Pa.C.S. (relating to decedents, estates and fiduciaries).” Subsection (g) states, “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©, 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.

Elective Share Issue and No Grounds Established: If no grounds have been established, the wife can take as given in the Will. However, the wife can ALSO take under the Elective Share under 20 PA.C.S. 2203, which gives 1/3rd of almost all husband’s assets, including revocable trusts, and any gifts given within one year prior to death in the amount of more than $3000.

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