Michael Bertin in The Legal Intelligencer: Superior Court Re-examines Death of a Party Pending a Divorce Action

In an article for The Legal Intelligencer published on February 04, 2025 , Michael Bertin, Partner and Co-Chair of the family law group, explores the issue of a litigant passing away during the pendency of a divorce matter. Titled “Superior Court Re-examines Death of a Party Pending a Divorce Action,” the article analyzes the recent Pennsylvania Superior Court case of McWilliams v. McWilliams, 324 A.3d 602 (Pa. Super. 2024). In this case, the wife filed for divorce, alleging an irretrievably broken marriage. The husband later filed a 3301(d) affidavit, asserting the parties had lived apart for over a year, but he passed away before the 20-day response period expired. The trial court discontinued the divorce case, ruling that grounds for divorce had not been established before the husband’s death. 

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.

The husband’s estate appealed, raising numerous issues on appeal. The appeal primarily focused on whether the trial court erred in law and abused its discretion by failing to find that grounds for divorce had been established under 23 Pa. C.S.A. § 3323(g) before the husband’s death. Additionally, it challenged the court’s determination that grounds for divorce were not established without holding a hearing, taking testimony or considering evidence to determine whether the marriage was irretrievably broken and the parties had lived separately for over a year.

The Superior Court upheld the trial court’s decision, emphasizing that under Pennsylvania law, divorce grounds are established only when the affidavit is deemed admitted or when a counter-affidavit is filed. Since neither occurred before the husband’s death, the case was properly discontinued.

The McWilliams case is significant for family law practitioners and the bench, as it examines the complex issue of a litigant’s death during pending divorce proceedings. While technical, the ruling clarifies that if grounds for divorce are not established before a party’s death, the case will be discontinued. If a 3301(d) affidavit is not filed and served before a party’s death, or if the required 20-day period has not elapsed following service, grounds for divorce are not established, and the case will abate.

Read the full article here.