Grounds for Divorce not Established by Stale Affidavit

The surviving spouse’s attempt to discontinue a divorce action following the death of the decedent was ineffective under new Pa.R.C.P. 1920.17, but grounds for divorce were not established within the meaning of 23 Pa.C.S. § 3323(g) when the decedent’s affidavit of consent to the divorce was filed more than thirty days after it was executed, in violation of Pa.R.C.P. 1920.42, and so the decedent’s designation of his wife as beneficiary of his life insurance was not modified by 20 Pa.C.S. § 6111.2.  The execution of a post-nuptial agreement as part of the divorce proceedings was an effective waiver of the right of the surviving spouse to a joint-and-survivor annuity, and that waiver can be enforced against the surviving spouse despite failure to comply with federal law, notably the Employee Retirement Income Security Act of 1974 (“ERISA”), which otherwise preempted state law, because ERISA does not bar an estate from recovering pension funds distributed to an ex-spouse who had executed a waiver of rights to those funds.  Easterday Estate, 2017 PA Super 315 (10/3/17), aff’ng on other grounds, 6 Fid.Rep.3d 178 (O.C. Montgomery Co. 3/22/2016).

(See the earlier report on the decision of the Orphans’ Court.)

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