Family Law

Pending Divorce Action is Not a Basis for Forfeiture of Spousal Share of Husband’s Estate

Pending divorce action was not a basis for forfeiture of spousal share where grounds for divorce had been established where decedent had not filed his affidavit of consent to no-fault divorce, and where decedent’s removal from marital residence was not spouse’s refusal to support.

In an estate litigation case, Patricia Scarpaci appealed from the order of the orphans’ court denying and striking her claim to a spousal share of the estate of decedent Thomas Scarpaci. Decedent died intestate, and was survived by appellant, two adult children from a prior marriage, and two minor children from his marriage with appellant. At the time of decedent’s death, he and appellant were estranged and in divorce proceedings instituted by appellant. Appellant had levied allegations of abuse by defendant who appellant claimed was an alcoholic. Appellant had obtained a temporary PFA order excluding decedent from the marital residence. Decedent died before entry of a divorce decree.

Appellant then petitioned for and received letters of administration for decedent’s estate. Appellant filed an inheritance tax return indicating that decedent’s assets were to be distributed equally among his four children, and later filed a certification of notice naming herself and decedent’s four children as beneficiaries of his estate. Appellant also completed an initial statement of proposed distribution for the estate to be divided among decedent’s children, as well as a revised statement reflecting that appellant would be taking her spousal share; however, appellant filed neither statement.

At the accounting, appellees objected to appellant’s decision to take her spousal share, and the orphans’ court ordered that appellant’s claim be denied and stricken as forfeited. On appeal, appellant argued that the orphans’ court erred as a matter of law in ruling that an election was required for her to claim her spousal share, and that appellant had forfeited her share.

The court agreed with appellant and reversed orphans’ court. The court ruled that appellant was not obligated to file an election to claim her spousal share, finding that the orphans’ court apparently conflated the spousal share with the elective share, which was inapplicable in this case as decedent died intestate.

The court further rejected the orphans’ court’s conclusion that appellant had forfeited her spousal share. The court noted that a pending divorce proceeding could only cause for forfeiture of spousal share if grounds for divorce had been established, but noted that grounds had not been established in appellant’s and decedent’s divorce proceeding because appellant had filed for no-fault divorce and decedent had not filed his affidavit of consent. The court also ruled that there was no basis for the orphans’ court to find that, by having decedent removed from the marital residence, that appellant owed decedent a duty of support and willfully neglected or refused to perform that duty.

Reference: In Re: Estate of Scarpaci, PICS Case No. 18-0066 (Pa. Super. Dec. 13, 2017), Digest of Recent Opinions, Pennsylvania Law Weekly, 41 PLW 83, January 21, 2018

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