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Death and divorce

Have you ever noticed how many bad things in life are described by words starting with the letter "d"? Despair, doom, defeat, drowning, defenestration etc. "Death" and "divorce" certainly belong on that list. So, what happens when a divorcing party dies during proceedings?

The answer depends on when the death occurs. If a party dies after divorce litigation is pending AND grounds for divorce are established, then the divorce continues. Otherwise, the divorce litigation goes away and the rules of probate and estates control. This has been the law for several years. "Grounds" for divorce generally means that the parties have filed their consents to the divorce or filed their acknowledgment that they were separated for more than 2 years.

What is new is that the Pennsylvania legislature has finally closed a loophole for the process. The new law, 20 Pa.C.S.A. 2016(a)(2), make it clear that once divorce grounds are established, the marital property is exclusively subject to equitable distribution and no long subject to inheritance law. For example, once grounds are established, a spouse cannot "elect" to take a marital share against the estate of the other spouse.

In fact, under 2016(a)(2), any will provisions in favor of the surviving spouse are rendered null and void (unless the decedent specifically provides in the will that the inheritance survives divorce - an unlikely proposition).

One interesting question: Since the court can divide the property of a deceased spouse incident to a divorce, can the court also actually divorce parties where one party is already deceased? The answer to that Is "no". Once a party dies, they cannot be divorced.

Remember that laws always change and that most rules have exceptions. So, be sure to contact your attorney before doing anything with your divorce.