Many states will not grant a pending divorce upon the death of a spouse. However, in Pennsylvania, once a divorce decree is filed, the commonwealth then has jurisdiction over the martial property. That means that, upon the death of one of the parties, a Pennsylvania court will divide the marital assets and debts between the surviving spouse and the estate of the deceased. Other states, such as New Jersey, put those decisions in the hands of the probate court, which is the court that handles wills and estate settlements.

In both cases, states distinguish between assets that are considered probate and those that are non-probate. Non-probate assets already have a named beneficiary and therefore do not have to be proven or evaluated by a court. These include life insurance death benefits and retirement plans. Those assets will go to the named beneficiaries regardless of the status of the pending divorce, however, if a grounds order has been entered in the divorce and the deceased spouse removed his or spouse as a named beneficiary, the surviving spouse may have a claim against the non-probate asset.

There can be additional complications. If your spouse created a trust to manage the distribution of his or her estate, the terms of that trust will dictate the disposition of assets owned by the trust. Also, in Pennsylvania, if a grounds order has not been entered in the pending divorce matter, the divorce abates. Under this scenario, if your spouse wrote you out of his or her will, you may have to make an election against the estate as the surviving spouse.

If you are unclear about the laws surrounding the death of a spouse during a divorce in Pennsylvania, speak with an experienced Bucks County divorce lawyer by calling us at 215-340-2207, or emailing