The Orphans’ Court had jurisdiction to determine the disposition of the decedent’s remains in accordance with the will of the decedent even though the will had not yet been admitted to probate. The Philadelphia Orphans’ Court did not abuse its discretion in finding that the decedent had been domiciled in Philadelphia when the decedent had sold his trailer in New Jersey and leased a residence in Philadelphia even though the decedent spent the last seven weeks of his life in medical facilities in Delaware County. In re: Estate of Jeffrey Feldman, 465 EDA 2024 (Pa. Super. 3/31/2025).
Although the decedent continued to hold real estate in Pennsylvania through an LLC, and did not claim a homestead exemption in Florida, he had purchased a residence in Florida, changed his driver’s license and voter registration to Florida, filed federal income tax returns using his Florida address, filed nonresident Pennsylvania income tax returns, and sold his Pennsylvania residence before his death, all of which showed his intention to remain in Florida indefinitely. Because the decedent had changed his domicile to Florida, and owned no real estate in Pennsylvania, Pennsylvania had no jurisdiction over his estate. Estate of Andrew J. Milligan, Deceased, 2310 EDA 2024 (Pa. Super. 3/18/2025) (non-precedential).
The Supreme Court has adopted a common law doctrine of “intent-based parentage” as a fifth way to establish parentage in Pennsylvania. In the case that was decided, a couple in a same-sex marriage had arranged to have a child through assistive reproductive technology and the artificial insemination of one of the spouses. The presumption that a child born during a marriage is the child of both parents did not apply because the parties separated and began divorce proceedings before the birth of the child, and neither the various documents that were signed by one or both of the parties nor the testimony of the parties were sufficient to establish parentage by contract. Because there was extensive evidence that the parties mutually intended to conceive and raise a child, the Supreme Court extended Pennsylvania’s parentage jurisprudence to adopt a doctrine of intent-based parentage, allowing a spouse who is not a biological parent to become a parent of a child which is not born during the marriage and for which there was no opportunity to adopt and no express contract. Glover v. Junior, ___ A.4th ___, ___ Pa. ___, 9 EAP 2024 (3/20/2025).
A marriage certificate is required to show the date of the marriage but not the time, the marriage ceremony does not need to take place in the same county that issued the marriage license as long is it occurs in Pennsylvania, and no particular words are required for a marriage as long as the parties express a present agreement to be married. Because the judgment of the trial court that there was no valid marriage was based on errors of law and was not supported by the record, and because there was conflicting testimony from the husband, wife, and officiant about whether there was a marriage ceremony and when it took place but the trial judge failed to make any determinations as to the credibility of the witnesses, the judgment was reversed and remanded for a determination of whether the parties had in fact exchanged marital vows in Pennsylvania. Eggleston v. Eggleston, 704 & 706 WDA 2024 (Pa. Super. 10/14/2025) (non-precedential).
The mistaken beliefs by the settlors that transferring their home to an irrevocable trust would preserve their Medicaid eligibility and protect the home against health care claims were mistakes of law and not “circumstances that were apparently not anticipated” within the meaning of 20 Pa.C.S. § 7740.2(a), and it was within the discretion of the Orphans’ Court, and not an error of law, to deny the settlors’ petition to terminate the trust. The “strained” relationship between the settlors and the trustee (their daughter) was also not grounds to terminate the trust. In the Matter of: Peterson Family Irrevocable Trust, ___ A.4th ___, 2025 PA Super 60 (3/13/2025).
A testamentary gift by a wife to a trust created by the husband and wife, and the transfers for the benefit of the surviving husband within the trust, both qualified for the 0% inheritance tax rate as transfers “for the use of” the surviving spouse. In re: Estate of Anne Mae Crum, ___ A.4th ___, 223 C.D. 2023 (Pa. Cmwlth. 3/12/2025).
DBE Commentary:
The result in the case would seem to be so obvious that it is difficult to understand the position of the Department of Revenue, or the rationale of the Orphans’ Court of Cumberland County that ruled in its favor. The key to the problem may lie in the definition of “sole use trust” and the illogic of that definition.
Husband and wife created a joint trust with husband as sole trustee, and were each entitled to half of the income while they were both living. Following the death of the wife, the husband remained the sole trustee, had the right to receive all of the income, could pay income and principal to himself or others, and could revoke or amend the trust. The husband reported the wife’s half of the trust on the inheritance tax return, along with the value of a testamentary gift to the trust under the wife’s will, and applied the spousal inheritance tax rate of 0% to both transfers. The Department of Revenue (DOR) disagreed, and assessed tax at 15%. Husband appealed to the Board of Appeals, which upheld the DOR, and then appealed to the Orphans’ Court, which also upheld the DOR. The husband then appealed to the Commonwealth Court, which reversed.
Reading the Commonwealth Court’s opinion, it is difficult to understand the position of the DOR, much less agree with it.
For example, the court stated that the DOR claimed that there “was no inter-spousal transfer … because the Trust was the owner.” But that is true of every revocable trust with assets that continue to be held in trust for a beneficiary, and yet the inheritance tax is always calculated based on the tax rate that applies to the beneficiary of a trust. Taking the argument of the DOR to its illogical conclusion, every transfer to a trust would be subject to a transfer tax of 15%, which is clearly not the law and never has been.
The DOR also argued that the tax rate applicable to surviving spouse applies only to “outright transfer between a husband and wife and is entirely inapplicable to the transfer of assets in trust where the beneficiary happens to be the surviving spouse,” even though the statute, 72 P.S. § 9116(a)(1.1) states clearly refers to transfers of property passing “to or for the use of a husband or wife.” (The phrase “for the use of” a person is traditionally used to refer to a transfer in trust for the benefit of a person.)
This is speculation, but it is possible that the DOR chose to take what seem like unsustainable positions because of the problems it may have created for itself through the narrow definition of “sole use trust.” As originally enacted, 72 P.S. § 9112 allowed a trust for the “sole use” of the surviving spouse to escape all tax at the first death, and be taxed only at the second death, but provided no definition of “sole use.” A definition of “sole use” was added by the Act of December 23, 2003, P.L. 250, No. 46 (apparently to reverse the result in In re Estate of Goldman, 781 A. 2d 259 (Pa. Cmwlth. 2001), and that definition in 72 P.S. § 9102 specifically states that a trust is not a “sole use” trust unless “no person, including the transferee, possesses an inter vivos power of appointment over the property.” So if the interests of a deceased spouse pass to a trust in which the surviving spouse is entitled to all of the income and can withdraw all of the principal at any time, that trust is not a sole use trust and, because powers of appointment or withdrawal are not subject to inheritance tax, the trust will not be taxable at the death of the surviving spouse. In order to prevent that result, the DOR argued that the interests of the deceased spouse were subject to inheritance tax at 15%, and lost.
So this decision may create a big inheritance tax loophole, and the DOR may seek a legislative solution (although an appeal to the Supreme Court is also possible).
The Orphans’ Court properly found that a coin collection was purchased with money from a joint account and was owned by the decedent and the surviving spouse as tenants by the entireties, and the property rights of the surviving spouse were not subject to any forfeiture because she was not making any claim against the decedent’s estate. The Orphans’ Court also properly ordered an examination of the contents of safe deposit boxes held by the decedent’s son when there was evidence demonstrating a high likelihood that assets of the decedent were in the boxes. The $231,000 in cash found in the safe deposit boxes was found to be the property of the decedent based on credible testimony that the decedent had hoarded cash during his lifetime, that the decedent’s son had access to the decedent’s residence and his lockbox, and that the son had gone into the safe deposit boxes for only the second time two days after the decedent’s death, but the son had no credible explanation for the source of what he claimed was his cash. In re: Estate of David B. Clapper, 1081 WDA 2024 (Pa. Super. 2/25/2025) (non-precedential).
It was error for the Orphans’ Court to enter an order declaring an agreement between the decedent’s widow and the administrator of the estate to be null and void when the motion regarding the agreement had been filed only two days earlier and the administrator had not yet had the 20 days within which to file a responsive pleading allowed by Pa. R.O.C.P. 3.7(a). In re: Estate of Joseph D. Kowalski, 127 WDA 2024 (Pa. Super. 2/4/2025) (non-precedential).
A petition to the Orphans’ Court for approval to sell a liquor license held by the decedent did not require notice to the Pennsylvania Liquor Control Board as an indispensable party. In re: Gloria Deckard, Deceased, 3140 EDA 2023 (Pa. Super. 1/29/2025) (non-precedential).
Husband was alleged to have improperly converted assets held jointly with his wife into his own name before his death. An action by the estate of the deceased wife against the estate of the deceased husband was not barred by the statute of limitations when it was brought within two years of the discovery of the conversion by the executor of the wife’s estate. The action was also not barred by res judicata because the earlier dismissal of objections to the inventory of the husband’s estate was not a decision on the merits, the court stating that the attempt to recover the property transferred during lifetime had to proceed “in different forms.” Estate of Margaret C. Seeney v. Estate of Harold S. Seeney, 1267 EDA 2024 (Pa. Super. 1/30/2025) (non-precendential).