Shannon K. Brophy

While many parties to divorce actions have been tempted to tell their soon to be ex to "drop dead," the decision in Yelenic v. Clark, 922 A.2d 935 (PA Super. April 12, 2007) cautions to be careful what you wish for. The Yelenic court clarified that once grounds for divorce have been established, while an equitable distribution action could continue upon the death of one of the parties, the court would not enter a posthumous decree in divorce.

While most people would likely say they could live without the psychic benefit of having actually received the decree in divorce, vindication is not the only matter at issue. Rather, property rights are at the heart of this decision.

In the context of divorce, the law in Pennsylvania provides for equitable distribution of the marital estate. This means that all property acquired during the course of the marriage, with certain limited exceptions, is divided between the parties. Transfers of property through equitable distribution are not taxed. Property acquired prior to the marriage is generally excluded from the marital estate and would remain with the party who owned it prior to the marriage.

If one party should die after a Complaint in divorce is filed, but before grounds for divorce are established, then the divorce proceeding is ended. The parties can neither obtain a decree of divorce, nor can they receive distribution of property under the divorce code. If the deceased party dies without a will, under the laws of intestacy in Pennsylvania, the surviving spouse will receive anywhere from one-half to all of the deceased party's estate. The estate will include all of the deceased's property, including property acquired prior to the marriage. This could be in addition to property that passes according to law. For example, unless the deceased party previously obtained a waiver, a retirement account will pass to the surviving spouse as a matter of law.

If the deceased party has a will, then the deceased's property will pass according to the terms of the will. Even if the existing will was written two weeks after the wedding and leaves everything to the surviving spouse, the surviving spouse will get everything as per the will, regardless of the fact that a divorce was filed. Even if the deceased party did not leave anything to the surviving spouse in the will, the surviving spouse has a legal right to elect against the will and receive one-third of the deceased's estate, regardless of the fact that a divorce has been filed.

All of this can change in the event that grounds for divorce have been established. Grounds for divorce are usually established either by the parties signing consents to the entry of a decree in divorce, or by two years passing from the filing of the complaint.

Once grounds are established, the surviving spouse loses the ability to elect to take against the will of the deceased spouse. The court will first decide the issue of equitable distribution of the marital estate, before the deceased's estate is addressed.

However, the Yelenic court decided that a decree of divorce could not be awarded posthumously. Therefore, it appears the surviving spouse will still be considered a spouse and receive one-half to all of the deceased party's estate under the laws of intestacy if there is not a valid will. It would follow that the surviving spouse can still collect a bequest under a will. Accordingly, the surviving spouse would still receive a retirement account that passes to a surviving spouse by operation of law.

The Yelenic court did temper its decision by noting a court's equitable powers. It is not yet clear exactly how courts will interpret that note. Individuals seeking a divorce should speak with an estates attorney to determine how best to minimize the risks to their estate plan while pursuing a divorce.

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