Unless you’re engaged in a grey divorce with an exceptionally ill or reasonably elderly spouse, death isn’t something most people anticipate playing into their divorces. And death has a habit of complicating everything.
Does the will then take over? Does the living ex get nothing at all, or walk away with everything?
Fortunately, Pennsylvania has put laws into place which address this very scenario.
Where will the case be resolved?
The case will be resolved in one of two places: divorce court, or probate court.
The proper venue will depend on the status of the divorce, and whether the spouses have yet established a grounds for the divorce.
In a no-fault divorce, this would happen if:
- Both parties have filed Affidavits of Consent agreeing to the divorce.
- The parties have been separated for two years.
- A complaint has been filed alleging the marriage is irretrievably broken and an affidavit has been filed alleging the parties have lived separate and apart for at least one year, if the defendant does not deny the allegations or the court determines the marriage is irretrievably broken.
If none of this is true, the matter will move to probate court.
Probate court isn’t necessarily a bad thing.
If the matter moves to probate court you’re still married, even if you were trying to pursue a divorce. You can’t divorce a dead person. This means you’d be entitled to your normal rights as a married partner under probate law, including the law to take against whatever will your ex had in place at the time.
Keep in mind that probate court can be as tricky as any other kind of court. Rights to the estate aren’t automatic.
For example, in the 2016 case In re. Estate of Talerico, the Superior Court of Pennsylvania ruled that the surviving spouse’s extramarital affairs forfeited his claims to his deceased wife’s estate. They had been in the middle of a divorce when Kathleen Talerico died.
The court applied section 2106 of the Probate, Estates, and Fiduciaries Code.
“A spouse who, for one year or upwards previous to the death of the other spouse, has willfully neglected or refused to perform the duty to support the other spouse, or who for one year or upwards has willfully or maliciously deserted the other spouse, shall have no right or interest under this chapter in the real or personal estate of the other spouse.”
This might be one of the few instances, in fact, in which extramarital affairs might have any kind of a bearing on the division of assets.
Divorce Help is a Call Away
All these scenarios demonstrate why it is so unwise to pursue a divorce on your own. Unexpected snags and snarls can complicate matters immensely, and can lead to severe financial loss.
If you’re about to enter the divorce process, get help. Reach out to Sadek Family Law today.