DIVORCE, DEMENTIA, AND DEATH: WHAT HAPPENS WHEN AN INCAPACITATED SPOUSE DIES DURING A DIVORCE?
Prior to 2005, if a party to a divorce action dies before the divorce is finalized, the divorce action is abated so that when a spouse dies, the divorce dies too. The effect of having the divorce die along with the deceased spouse effectively leaves the parties’ marriage intact and requires that the parties’ economic rights and obligations be determined under the Probate Code rather than the Divorce Code. In 2005, the Pennsylvania Divorce Code was amended to provide an exception in cases where the grounds for divorce were established prior to the death of a party. Under this exception, the property rights of the surviving spouse will be determined by the Divorce Code so long as grounds for divorce were established prior to the death of the party. But what happens to a divorce action when issues of a party’s competency and capacity are raised prior to their death?
In Berry v. Berry, 2018 Pa. Super 276 (Oct. 11, 2018) Husband, who was in his 90s, and Wife, in her 80s, both suffered from dementia and the children of the parties (a daughter for the mother and a son for the father), served as each parties’ power of attorney. Throughout the action, the issue of the parties’ dementia and competency was brought to the trial court’s attention but the trial court refused to have a hearing to determine the parties’ competency on the basis that it was “an orphan’s court issue, not a divorce issue”. The court then held an equitable distribution hearing and divided the estate equally. Wife thereafter appealed the decision of the court, and during the appeal, Husband passed away.
Although the issue of competency was not raised by Wife in her appeal, the Superior Court stated that they had “inherent authority, in the interest of justice, to raise the issue of the parties’ competency sua sponte”. The Superior Court held that Pennsylvania law does not allow an incompetent to bring a divorce action “without the court confirming whether the incompetent retains the mental capacity to make reasonable decisions concerning his person, his understanding of the nature of a divorce action and his desire to maintain this action”. The Superior Court further stated that “a power of attorney cannot prosecute, nor defend, a divorce action on behalf of an incompetent principal. That role is reserved exclusively for a court-appointed guardian or guardian ad litem”. Therefore, if the issue of competency is raised, the court must conduct a hearing to determine whether court must appoint a guardian.
In the Berry case, the Superior Court stated that had the husband not died during the appeal, the case would have been remanded “for the trial court to conduct a more thorough hearing on husband’s capacity to determine … whether the husband possessed the mental capacity to make reasonable decisions concerning his person, his understanding of the nature of a divorce action, and his unequivocal desire to maintain this action.” In the Berry case, the trial court did not conduct a thorough hearing regarding capacity. By reading this case, if the issue of competency and capacity are raised, the court shall first conduct a hearing to determine whether a guardian or guardian ad litem should be appointed. That did not occur in the Berry case…so what happens with the divorce now that Husband has passed away?
Prior to his death, Husband filed an affidavit under §3301(d) and therefore established grounds for divorce. If capacity were not an issue, the divorce in Berry would have fit within the statutory exception allowing the parties’ economic rights and obligations to be processed under the Divorce Code. The Superior Court held however, that the outstanding question of Husband’s incompetency and failure to appoint a guardian voids the divorce decree. And because Husband died before he could establish his competency, the court cannot rely on his §3301(d) affidavit to process the parties’ economic rights and obligations under the Divorce Code, and therefore Husband’s death abated the divorce action.
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