Case Notes: Money from will contest is not marital

Ordinarily, money received by inheritance is not marital. 23 Pa.CSA 3501 defines marital property. 3501 also lists various types of property that are not marital. Non-marital property includes property "acquired by ... bequest, devise or descent.". 23 Pa.CSA 3501(a)(3).

But what about property acquired from litigation over a will contest? In the case of Strauss v. Strauss, 27 A.3d 233 (Pa. Super. 2011), the Superior Court deals with this issue. In Strauss, the Husband and Wife married in 2000 and separated in 2007. Husband's father signed a will in 1991 and then a new will in 2005. Husband and his brother were provdied wtih the "residuary estate" (a cathcall for everything not otherwise covered in their will). Father subsequently died in 2005 and Husband received about $230,000 from his father's will. That money was clearly not marital because it was an inheritance.

However, Husband and his borther also contested the 2005 will, claiming that a 1991 will (giving them more money) was controlling and that the 2005 will was inavlid, due to their father's incapacity. Husband and his borther setted their legal action for an additiional 150K for each brother. Was this 150K marital? Ordinarily, money received from a lawsuit is marital so long as the right to the proceeds arises between the date of marriage and date of separation.

In Strauss, the Superior Court found that the 150K in lawsuit money was not marital. The will money was not transformed by being obtained through a lawsuit. The lower court noted that Husband's father died during the marraige so this meant that the right to obtain the lawsuit proceeds arose during the marriage and was a marital asset. The Superior Court noted that Husband's right to the lawsuit moneys came out of his right to the residuary estate and tha the funds could only be distributed under the terms of the will and were distributed through the estate. So the Superior Court decision held that the lawsuit proceeds were really part of the inheritance and were therefore not marital.

WIlls are just one small part of divorce law and yet a good attorney will review the many aspects of receiving a will. Were the will proceeds originally marital? Were the will proceeds "transformed" by being placed in joint names? If non-marital, can the will proceeds still skew the equitable distribution? Ask you attorney for help in this area of law and make sure you hire an attorney with experience, knowledge and focus.

As always, speak to your attorney before applying this case to your circumstances. In the interest of clarity, I did not address several aspects of this opinion. Also, almost all rules have exceptions and the exceptions often have exceptions.