Many property settlement agreements contain disclosure clauses that acknowledge full disclosure of assets by both parties and/or waive further disclosure of assets. Despite the language contained in these provisions, family law practitioners have taken solace in 23 Pa. C. S. Section 3505(d) constructive trust for undisclosed assets, which provides an equitable remedy in the event a party fails to disclose an asset. This code section gives the court power to divide this later discovered asset. Even though the property settlement agreement contains disclosure clauses, many practitioners, including me, assume that this code section will be applied in the event an undisclosed asset is later discovered.

Bennett v. Bennett, 2017 Pa. Super 253, decided Aug. 4, rejects this assumption. In Bennett, 19 years after the property settlement agreement was executed, the wife filed a petition seeking to invoke 23 Pa. C.S.A. 3505(d), arguing that the husband failed to disclose the existence of a pension earned during the marriage. She argued that she learned through the parties' daughter that the husband was receiving pension benefits in the monthly amount of $1,785. The Superior Court found that the wife could not argue lack of disclosure, as the language of the agreement provided that she was fully aware of the assets of the husband.

23 Pa. C. S. Section 3505(d) does not require a showing of intentional nondisclosure. Therefore, if the court finds that this code section does not apply because the property settlement agreement provides that full disclosure has been made, the presumption of full disclosure can only be overcome by clear and convincing evidence of fraud or duress. The presumption cannot be overcome with evidence of mutual mistake or an unintentional omission.