ERISA Does Not Preempt Enforcement of Contractual Waiver of Pension; Stale Affidavit Did Not Establish Grounds for Divorce

Posted on by May 19, 2022

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 pension annuity, and that waiver can be enforced against the surviving spouse despite failure to comply with 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.  Pa.R.C.P. 1920.42(b)(2) is a valid exercise of the rule making power of the courts, and so 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, and the decedent’s designation of his wife as beneficiary of his life insurance was not modified by 20 Pa.C.S. § 6111.2.  Easterday Estate, 653 Pa. 143, 209 A.3d 331 (2019), aff’ng 171 A.3d 911, 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 reports on the decision of the Orphans’ Court. and the decision of the Superior Court.)

New Philadelphia Guardianship Rules

Philadelphia has adopted new local O.C. Rules 1.8(c) (forms), 14.1A (guardianship petition practice and pleading), and 14.2A (petition for adjudication of incapacity), 14.6A (determination of incapacity and selection of guardian; hearing date), and 14.8A (guardianship reporting, monitoring, review, and compliance), to be effective June 1, 2019. An appendix of forms in included with the new local rules. “Adoption of Local Orphans’ Court Rules Governing Guardianship Proceedings; Administrative Order No. 09 of 2019” (Philadelphia Co. 5/1/2019), 49 Pa.B. 2477 (5/18/2019).

New Bucks Co. Guardianship Rules

Bucks County has vacated Bucks Co. O.C. Rules 14.2A through 14.5I and and adopted Rules 14.2A (Notice of Mental Health Commitment), 14.2B (Withdrawal of Petition), and 14.9A (Allowances), all relating to guardianships. “Order Rescinding Orphans’ Court Rules 14.2A through 14.5I and Promulgating Orphans’ Court Rules 14.2A through 14.9A,” (Bucks. Co. 4/18/2019), 49 Pa.B. 2346 (5/11/2019).

Repeal of the Inheritance Tax for Descendants?

Posted on by June 28, 2019

There have been attempts from time to time in the Pennsylvania House of Representatives to repeal the Pennsylvania inheritance tax, but those attempts have always died in the Senate.

It is therefore noteworthy that a bill to repeal the inheritance tax on children, grandchildren, and other lineal descendants (as well as parents and grandparents) has been favorably reported out of the Senate Finance Committee, and has received in its first consideration by the Senate as a whole.

S.B. 28 would phase out the inheritance tax on lineal descendants (and ancestors), which is now 4.5%, by reducing the tax rate by 0.25%, 0.5%, and 1% increments over the next 10 years, ending with a 0% rate effective 7/1/2029. The 12% rate for siblings, and the 15% rate for other beneficiaries, will not be affected.

For information on other pending bills that might be of interest, see Pennsylvania Legislation Pending.

[6/28/2019 Update: Support for S.B. 28 may be undermined by the passage of H.B. 262, which imposes a tax of 0% for children who are age 21 or younger.)

Relevant Evidence and Classifications

Posted on by May 3, 2019

The Supreme Court’s Committee on Rules of Evidence has published a proposed addition to the official comment to Pa.R.E. Rule 401 (“Test for Relevant Evidence”). The new comment would state that:

“Generally, evidence of a person’s race, sex, gender identity or expression, religion, national origin, immigration status, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation is irrelevant and inadmissible. See Pa.R.E. 402 (evidence not relevant is not admissible). Such evidence may also be subject to analysis under Pa.R.E. 403, concerning unfair prejudice.”

The report on the proposed change explains that the original catalyst for the change was a recommendation on the admissibility of evidence of immigration status, and the report explains why immigration status has usually been considered to be legally irrelevant. The committee then decided to address the more general issue of class prejudice and discrimination, drawing on other legal guidelines to create a more expansive list of classes protected from discrimination by public policy.

The deadline for comments is June 4, 2019.

“Proposed Amendment of the Comment to Pa.R.E. 401,” 49 Pa.B. 2218 (5/4/2019).