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Divorced After Death?

The Divorce Code as amended in 2005 provides for equitable distribution after one party's death as long as grounds have been established.


It's always been my understanding and the position of most practitioner's that if your client or their client dies during a divorce battle, it's over. The matter "abates" or ends. Not so fast, the 2005 amendments to the Divorce Code specifically allow for equitable distribution under the Divorce Code as opposed to a spouse's elective share under the PA Fiduciary and Estates Code. See Yelenic v. Clark, 2007 PA Super 104, 922 A.2d 935, 2007 Pa. Super. LEXIS 728 (Pa. Super. Ct. 2007).

In Yelenic, the husband and wife both agreed to a divorce. They had filed a divorce complaint based upon an irretrievable breakdown and separation for more than two years. A marital settlement agreement had been prepared and signed by the wife. Husband executed his consent to the entry of a final decree and so did the wife. However, husband had indicated to his assistant that he would arrange to sign the MSA later when a notary was present. As it turns out, he was murdered before he could sign the MSA to conclude the matter. Both the wife and the estate's representative wanted the entry of a final divorce decree and enforcement of the marital settlement agreement.

In 2005, 23 Pa.C.S. § 3323(d.1) was added to the Divorce Code. Under that new subsection, if the grounds for divorce were established, then the parties economic rights were to be determined under equitable distribution principles rather than the elective share provision set out in the Probate Code at 20 Pa.C.S. § 2203(c). The amendment did not provide for entry of posthumous divorce decree.

23 Pa.C.S. § 3323(d.1) provides as follows:

(d.1) 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 rather than under 20 Pa.C.S. (relating to decedents, estates and fiduciaries).

Pennsylvania courts have long held that an action in divorce abates upon the death of either party. There are no statutory grounds for the entry of a divorce decree after the death of a party. The primary purpose of divorce is to change the relation of the parties and when the death of a party occurs, that purpose can no longer be achieved because the marital relationship has been ended by death.


However, under 23 Pa.C.S. § 3323(d.1), if grounds for divorce have been established as set forth in 23 Pa.C.S. § 3323(g), then the parties' economic rights are determined under equitable distribution principles rather than the elective share provision of the Probate Code.

23 Pa.C.S. § 3323(g) provides as follows:

(g) 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(c), 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.


The elective share provisions permit a spouse in Pennsylvania to claim one-third of certain properties of the other spouse's estate when the other spouse dies, thus overriding the deceased spouse's will.

Under most circumstances, it will be in one party's interest to resolve the matter per the terms of the marital settlement agreement. An elective share or one-third of the total estate, may not always be as good or worse than the settlement agreement. This is important to look at before walking away from the table because one party to a divorce action has passed on.

If you need assistance in your divorce matter, you may contact an experienced attorney at Shaffer & Engle Law Offices, LLC (717) 268-4287.