A Superior Court decision last month by Judges Lazarus, Bowes and Ott reminds divorce practitioners that there are distinctions to be drawn between the rights of intestate surviving spouses and the rights of a surviving spouse to elect “against” the will of a decedent.
We start with some old news. When the divorce code first came into effect in 1980 the rule was that the death of a spouse had the effect of abating any divorce action which had not been concluded by a final decree. The 2005 Amendments to the law provided that once grounds for divorce had been established, the action could proceed with the decedent’s estate substituted as a party in the action.
Thomas Scarpaci died in 2013 while a divorce action was pending. Wife had previously filed a Protection from Abuse Claim, but had withdrawn it. The divorce action had been pending for almost six years when Thomas died intestate.
Widow Patricia filed for letters of administration. In 2015 she circulated documents at first indicating that the estate would be divided among the decedent’s children and filed an inheritance tax return stating this was how the estate would be divided. But, several months later her counsel issued a revised distribution statement indicating that she would be taking her share. This distribution schedule was also not filed. When an audit status was called, the children of the decedent asked to strike the election and deny her the right to claim an intestate share. After briefing, the Trial Court in Allegheny County sustained both arguments. Wife appealed.
The Superior Court first looked at the issue of forfeiture of the right to take a share of decedent’s estate under 20 Pa.C.S. 2106. The court notes that notwithstanding the length of the divorce, grounds had not been established as consents were not filed nor had either party perfected the existence of a two-year (now one-year) separation. Thus the statute was inapplicable.
The second ground relied upon by the trial court was that the widow’s conduct warranted denial of her right to claim because she was guilty of non-support of her husband under Section 2106(a)(1). The Superior Court held that the burden to prove non-support was upon the heirs advancing that claim. The Court further notes that while alive, husband never prosecuted a claim for support and that the argument that wife should have supported him notwithstanding the absence of a claim was insufficient. The object was made orally in the context of an audit proceeding.
In this case, the court never conducted a hearing or received evidence in any other form. Curiously, the order deciding forfeiture was reversed without any remand for hearing. The Court did note that many required pleadings, including an explicit request to declare wife’s interest forfeited, were not filed.
2017 Pa. Super. 393 (12/13/17) http://www.pacourts.us/assets/opinions/Superior/out/Opinion%20%20Reversed%20%2010335312930622742.pdf
*A NOTE REGARDING OUR BLOG OF 1/3/18: We wrote on Passarelli Trust, a reported decision holding that failure to specifically disclose all assets placed in trust was not sufficient to dismantle the trust on the basis of fraud. Earlier this month the Court withdrew this holding and ordered the matter argued en banc.
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