Discontinuance of Divorce Action after Death

Plaintiff in divorce action may file for discontinuance after death of  spouse and before commencement of trial regardless of whether grounds for divorce have been established, and so have her rights in the estate determined under the Probate, Estates and Fiduciary Code instead of the Divorce Code, but the post-nuptial agreement entered into after the divorce action began is still enforceable according to its terms.  Easterday Estate, 6 Fid.Rep.3d 178 (O.C. Montgomery Co. 3/22/2016), aff’d on other grounds, 2017 PA Super 315 (10/3/17).

Note:  It is no longer possible to discontinue a divorce action once grounds for divorce are established, so the result in Easterday, which was affirmed by the Superior Court on other grounds, cannot be replicated.  See Pa.R.Civ.Proc. 1920.17(a) and (d), as amended by “In re: Order Amending Rules 1920.17, 1920.31, 1920.33, 1920.42, 1920.54, 1920.55-2, 1920.71, 1920.71 and 1920.75 of the Pennsylvania Rules of Civil Procedure,” Civil Procedural Rules Docket No. 622 (5/6/2015), 45 Pa.B. 2457 (5/23/2015),   The order includes a note that the holding of the Superior Court decision relied upon in EasterdayTosi v. Kizis, 85 A.3d 585 (Pa. Super. 2014), is superseded by the amendment of the rules.

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