The current domestic law situation between Khloe Kardashian and Lamar Odom, although unique, is not uncommon. In December 2013, Khloe filed for divorce against Lamar, but for whatever reason, never finalized the paperwork necessary to receive a final decree in divorce from him. Thus, at the time he experienced his recent near fatal “health complication,” she was still legally his wife. For this reason, she would be permitted to make medical decisions for him, and possibly, manage his finances.
But what would have happened if Lamar had died during this “gray area” between marriage and divorce?
In Pennsylvania, if one of the parties to a divorce dies after the decree in divorce is entered, but before a distribution of the parties’ marital estate has been determined, by law the action proceeds and the deceased spouse’s personal representative would be substituted for the deceased spouse in all future equitable distribution litigation.
If a party to a divorce action dies during the course of the divorce proceedings, before the decree in divorce is entered, but before a distribution of the parties’ marital estate has been determined, by law the divorce action must abate, e.g., terminate. Thereafter, the surviving spouse is free to exercise his or her elective rights against the deceased spouse’s estate, as set forth under the probate code.
If a party to a divorce action dies during the course of the divorce proceedings, before the decree in divorce is entered, and before a distribution of the parties’ marital estate has been determined, but grounds for divorce have been established, e.g., a judicial determination was made that adultery had occurred between the parties, the parties had both signed affidavits of consent and waivers of notice, or the parties mutually acknowledged through pleadings that they had been living separate and apart for a period of two years, the divorce action will not abate. Hereafter, the surviving spouse is able to continue the equitable distribution proceedings against the deceased spouse’s estate, and is not limited to his or her elective share as a surviving spouse, under the probate code.
Cara A. Boyanowski concentrates her practice in the field of domestic law and wills and estates. As a domestic law practitioner, she represents clients in simple and complex divorce, support, custody, alimony, step-parent adoptions, name change and same-sex divorce and custody matters. She works out of Obermayer’s Harrisburg, PA office and can be reached at 717-234-5315 or at Cara.Boyanowski@obermayer.com.