If a spouse finds out their partner has been unfaithful during marriage, it can elicit a lot of distress and emotions, but most people will decide to file for divorce. During this process, what happens if the spouse you are divorcing becomes ill and ultimately dies before the case has resolved? Now what?

Prior to January 28, 2005, if one spouse died during the pendency of a divorce, the divorce action abated. In other words, the action ceases, and any assets titled in the surviving spouse’s name are retained by the surviving spouse, including any jointly titled assets passed to the survivor by operation of law and any assets in the decedent spouse’s name passed under the decedent spouse’s will. If there is no will, the state will enact the intestacy statute. If a spouse cuts the other out of their will or leaves less than what is statutorily required, the spouse will receive a share under Pennsylvania law (which is generally 1/3 of the decedent’s estate).

Life insurance and retirement benefits pass outside the decedent’s will and depend on who the decedent names as their beneficiary. With respect to retirement plans, ERISA retirement plans, 401(k) and employer-sponsored plans require a spouse to be the beneficiary, unless the spouse has signed a spousal waiver relinquishing that right. IRAs on the other hand, have no such requirement.

Since January 28, 2005, the issue of what happens when a spouse dies during divorce proceedings hinges on whether “grounds” for divorce have been established. In order to establish no-fault grounds for divorce either both parties have filed their consents to the divorce (which a party is eligible to do 90 days after service of the divorce complaint); or the parties have been separated for one year. In order to establish fault grounds for divorce, there must be a finding by a master that fault grounds exist or the court makes it own finding that fault grounds exist. Fault grounds include such things as desertion, adultery, cruel and barbarous treatment or indignities.

If grounds for divorce have been met and one party dies before the divorce decree has been entered, the parties’ economic rights are determined under the Divorce Code, as long as the decedent has raised and filed their own economic claims. The personal representative of the decedent spouse would step into the shoes of the decedent, and the case proceeds, dividing the marital assets under the equitable distribution statute and not under the elective share provisions of the Probate Code. If grounds for divorce have not been established, the divorce action will abate and the property of the parties will be divided as stated above.

If you or your spouse are ill or believe that death may be imminent, you should consult with an attorney to determine if it is to your advantage or disadvantage to establish grounds for divorce (if you are eligible) unless you are better off if one of you were to pass away without establishing grounds for divorce.

The recent Pennsylvania Superior Court decision in Shell v. Shell, ___A.3d ___, 2023 Pa. Super. 195 (Pa. Super. October 3, 2023), illustrates the requirements for establishing grounds for divorce in this situation. In this case, the parties had been married since 1988 and lived in Florida. Both parties had children from prior relationships but did not have children together. In May 2019, the parties separated and never lived together again after the husband moved to a senior living facility in Pennsylvania. Two years later, the wife filed a complaint in divorce alleging that the parties had lived separate and apart for the required one-year period and that the marriage was irretrievably broken. The husband never answered the complaint, although there is no such requirement that he do so. On August 9, 2022, the husband passed away while the divorce action was pending.

The wife filed a praecipe to withdraw her divorce complaint and discontinue the divorce action. However, the administrators of the husband’s estate sought to set aside the wife’s praecipe to allow the divorce action to continue.

In discontinuing the divorce action, the trial court found that grounds for divorce had not been established because there was no dispute that the wife never filed her affidavit (in the form required by the rules) stating that the parties had been separated for one year. The affidavit form is required to establish grounds for divorce. Even though the wife had filed a verified complaint alleging the parties had been separated for one year and filed a separate petition alleging grounds for divorce had been established, this did not sufficiently satisfy the requirements. Since the affidavit required by section 3301(d) of the Divorce Code had not been filed, grounds for divorce had not been established and the divorce action abated. The Superior Court affirmed the trial court’s decision.