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      Pennsylvania Divorce Law Update: Dating Post-Separation May Mean Losing Spousal Rights Under the Probate Code

      On March 18, 2016, the Superior Court rendered a decision in the case of In re: Estate of Kathleen Talerico, 2016 Pa. 66 (Pa. Super. 2016), and confirmed that, under certain circumstances, engaging in extra-marital affairs after the commencement of a divorce proceeding in Pennsylvania deprives the surviving spouse of spousal rights under the probate code.

      Pennsylvania Law – How Death Affects Divorce Proceedings

      As a default matter, the death of a spouse during the pendency of a divorce proceeding abates the divorce action and any and all claims for equitable distribution; stated otherwise, the divorce ends and equitable distribution never occurs.  Notwithstanding the foregoing, the probate code contains various provisions that aim to ensure that the marital estate will be divided in a fair manner in the event that one spouse predeceases the other.  Essentially, the principle is that the separation of spouses, even when not finalized by a divorce, should be given effect following a spouse’s death.

      For instance, Section 2106(a) of the probate code states the following:

      “Spouses share. — 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 and maliciously deserted the other spouse, shall have no right or interest under this chapter in real or personal estate of the other spouse.”

      Separation alone does not constitute willful and malicious desertion.  Where an allegation of desertion is based on separation, the party seeking forfeiture must prove that the surviving spouse deserted the decedent spouse without cause or without the decedent spouse’s consent.  However, where the parties mutually consented to the separation, the analysis is slightly different.  Specifically, where (i) there is a separation by mutual consent and (ii) both spouses enter into adulterous relationships with paramours, neither spouse may share in the other spouse’s estate, regardless of who had the extramarital affair first.  The underlying theory is that proving adultery gives rise to the inference that the adulterous spouse’s open and intentional disregard of his or her marital obligations constitutes willful and malicious desertion; it then is up to the adulterous spouse to rebut the inference.  If the adulterous spouse cannot rebut that inference, he or she cannot share in the decedent’s estate.

      Divorces in Pennsylvania can last for months and years past the time of the original separation, and much can transpire during that period of time as spouses move forward with their lives in the interim.  While some choose to wait until the divorce is finalized to start dating, many start dating at some point before the entry of the divorce decree, so the fact pattern described above is not unusual.

      It is worth noting that the result described above may be somewhat counterintuitive given the fact that the court cannot consider marital misconduct when determining the equitable distribution of a marital estate, but this makes sense for various reasons.  For instance, a spouse’s separate property would be excluded from the marital estate for purposes of equitable distribution, so the other spouse should not be able to obtain a portion of such separate property simply because a death occurred before equitable distribution was completed.

      Given the above state of the law, it is important to analyze the facts and circumstances surrounding a spouse’s death during the pendency of a divorce proceeding, as it can have a substantial impact on the ultimate disposition of the spouse’s estate.



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