Nina is a partner at Obermayer and Chair of the Trusts and Estates practice group. Her practice is devoted exclusively to estate and trust law, with an emphasis on estate related litigation....Read More by Author
When Is It A Good Time to Establish Grounds for Divorce?
In Pennsylvania, if you have established grounds for divorce and one party dies, the divorce laws apply and the surviving spouse will have to proceed to the division of marital assets with the deceased party’s estate. Essentially the surviving spouse could be faced with dividing assets with his or her children, or a family member of the deceased spouse. If there are no grounds for divorce and one spouse dies, the divorce process ends as if the parties never filed. The surviving spouse will be entitled to all assets titled in joint names, all assets to which he or she are the stated beneficiary and more depending upon the deceased party’s will.
How does divorce or a finding of grounds impact your existing estate planning documents? Most married couples have estate planning documents (either Wills or revocable/living trusts) that benefit each other. Those estate planning documents will govern the distribution of property under those documents unless either the divorce becomes final, or grounds have been established as explained below. The question may be asked if there has been a divorce decree or the establishment of grounds, how are provisions in the Will or Trust for the spouse interpreted? The answer is that the Will or Trust operates as if the spouse had pre-deceased the person who died, and alternate beneficiaries would be entitled to receive property, unless there is a clear intention for the benefit to flow to the divorced spouse.
What are grounds for divorce? In order to establish grounds for divorce you must file a divorce complaint and have it served upon the other party. If you are proceeding with a “no fault” divorce, as with most cases, both parties must file a document consenting to the divorce. This can be accomplished 90 days after the filing and service of the divorce complaint. If one party is unwilling to consent to the divorce the other party can file a document after one year since the parties’ separation date. If a divorce complaint is filed, the separation date is presumed to be at the earliest the date of filing unless there is clear evidence as to another date. It is important to consult your attorney as to what constitutes separation as it depends upon the facts of each case.
If you want to establish fault grounds you will need to have a hearing, which will not happen until the courts reopen. Therefore, it is best to try to establish no-fault grounds if you want to preserve your right to proceed with division of assets in the unlikely event that you or your spouse were to die.
It is important to consult with both a family law attorney and an estate attorney to determine your best option as to whether or not to establish grounds.
The information contained in this publication should not be construed as legal or medical advice, is not a substitute for legal counsel or medical consultation, and should not be relied on as such.