Michael E. Bertin of Obermayer Rebmann Maxwell & Hippel. Courtesy photoSuperior Court Re-examines Death of a Party Pending a Divorce Action
In the recent case of McWilliams v. McWilliams, the Pennsylvania Superior Court addressed the issue of a litigant passing away during the pendency of a divorce matter.
February 04, 2025 at 10:24 AM
6 minute read
A major change in divorce law occurred in 2005. Prior to the Divorce Code amendments in 2005, if a party died during the pendency of a divorce action, the divorce action would abate, and the property rights would be determined under the Probate Estates and Fiduciary Code. Pursuant to the 2005 amendments to the Divorce Code, a divorce action will not abate upon the death of a party if grounds for divorce have been established.
In 2023, the Pennsylvania Superior Court addressed the issue of a party dying during the pendency of a divorce action in the case of Shell v. Shell, 304 A.3d 401 (Pa. Super. 2023). In the Shell matter, the Superior Court addressed the issue of when a divorce litigant dies prior to a party filing an affidavit under Section 3301(d) of the Pennsylvania Divorce Code which is necessary to establish grounds for divorce. Because no affidavit under Section 33101(d) was ever filed, the Superior Court affirmed the trial court’s discontinuance of the divorce matter.
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