Michael Bertin Discusses Death of a Party Pending a Divorce Action Case in The Legal Intelligencer

February 06, 2024

In an article published in The Legal Intelligencer on February 6, 2024, partner and co-chair of the family law group, Michael Bertin, analyzes the Pennsylvania Superior Court case of Shell v. Shell, which addressed the issue of when a divorce litigant dies prior to a party filing an affidavit under 3301(d). In the Shell matter, a divorce action was instituted, and before either party filed an affidavit under Section 3301(d), the husband passed away. Prior to the husband’s death, the wife filed a petition for special relief to reverse the transfer of the beneficiary from the wife to the husband’s children on a “transfer on death” account, as the husband made the change of the beneficiary without the wife’s knowledge. According to the opinion, “upon agreement of the parties, the trial court directed that the wife be reinstated as the sole beneficiary until further order of the court.” 

In 2005, the Pennsylvania Divorce Code was amended and provided that a divorce action will not abate upon the death of a party, so long as the grounds for divorce have been established. That amendment was a major change to divorce law. Prior thereto, if a party died during the pendency of a divorce action, no matter how far along in the divorce process the parties were at the time that a party died, the divorce action would abate and the property rights would be determined under the Probate Estates and Fiduciary Code (PEF Code), 20 Pa. C.S. Sections 101-8815.

The Shell case is an important reminder to family law practitioners that without grounds for a divorce being established along the road toward divorce if a party passes away, the case will abate. As such, if a party would like to ensure that the case moves forward regardless of whether there is a death during the pendency of the divorce, it is important to take the necessary steps to establish grounds for a divorce under the Divorce Code. Otherwise, the case will abate, and the property rights will be determined under the PEF Code, instead of the Divorce Code.

Read the full article here