J-S23014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF BRUCE M. RACHT                   IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA




APPEAL OF: FERN RACHT

                                                      No. 2609 EDA 2015


                      Appeal from the Order July 13, 2015
                In the Court of Common Pleas of Monroe County
                     Orphans' Court at No(s): 194 O.C. 2014


BEFORE: PANELLA, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                                FILED MAY 17, 2016

        Appellant, Fern Racht, appeals from the order entered on July 13,

2015, in the Court of Common Pleas of Monroe County, which sustained the

decision of the Register of Wills to revoke Letters of Administration to Racht

and to re-issue Letters of Administration to Janet Foster, based upon a

finding that Racht had forfeited her right to a spousal share of the decedent,

Bruce M. Racht’s estate pursuant to 20 Pa.C.S.A. § 2601(a)(1). We affirm.

        The trial court summarized the pertinent history of this case as

follows.

             The decedent and Fern Racht were married in or about
        1987. The parties separated in or about April 2007. At the time
        of separation, the parties owned a home together in Jackson
        Township, Monroe County, Pennsylvania. For several years prior
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     to the separation, the parties were residing with Fern Racht’s
     elderly parents in New Jersey in order to assist in their care. In
     April 2007, the decedent left the New Jersey residence and
     returned to the Pennsylvania residence. He encountered the
     home in poor condition and resided with a friend, Judith Perry,
     for a few months while the home was repaired.

           The decedent then stayed at the Pennsylvania house and
     Fern Racht continued to reside with her parents in New Jersey.
     In August 2007, Fern Racht, through counsel, filed for divorce in
     Pike County, Pennsylvania. After four (4) years of no activity in
     the case, Fern Racht filed a notice of intention to proceed with
     divorce in 2011. No other action was taken and the parties
     remained legally married.

            The parties lived separate and apart until the time of the
     decedent’s death in April 2014. During that time, each party
     remained financially independent. The parties also remained
     friends after an initial period of acrimony. Both parties dated
     other people. After the death of Fern Racht’s parents, she moved
     back to Monroe County, Pennsylvania, residing in a mobile home
     titled solely in her name. Fern Rach cohabitated on two separate
     occasions with a boyfriend named Tony and Chuck. Ms. Racht
     was still residing with her boyfriend Chuck when the decedent
     died. The decedent also lived with a girlfriend at times during the
     separation from Ms. Racht.

           In or about 2013, the decedent entered into a refinance
     and/or loan modification with a lender on the residence in
     Jackson Township. At that time, Fern Racht signed a quit-claim
     deed conveying her interest in the home to the decedent. The
     decedent also was the only named person on the new mortgage
     and/or loan modification. Other than an occasional loan to each
     other, neither party financially supported the other party.

Orphans’ Court Opinion, 7/13/16 at 2-3.

     Following the decedent’s death, Letters of Administration were initially

granted to Racht as the surviving spouse. Janet Foster, the decedent’s

sister, filed an objection to the issuance of Letters of Administration to

Racht. A hearing was conducted before the Register of Wills on December



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11, 2014, after which the Letters were revoked and re-issued to Janet

Foster. Racht subsequently filed an appeal to the Orphans’ Court. On July

13, 2015, the Orphans’ Court affirmed the decision of the Register of Wills to

revoke the Letters of Administration to Racht, based upon a finding that

Racht had forfeited her right to a spousal share of the decedent’s estate

pursuant to 20 Pa.C.S.A. § 2601(a)(1).1 This timely appeal followed.

       Racht raises the following issue for our review.

       Was the [Orphans’] [C]ourt’s decision, upholding a prior
       determination of the Register of Wills revoking letters of
       administration previously granted to Appellant Fern Racht and
       declaring that Mrs. Racht had forfeited her spousal share of her
       deceased husband’s estate, free from legal error and supported
       by competent and adequate evidence in the record?

Appellant’s Brief at 4.

       Our     standard   when     reviewing     an   Orphans’   Court’s   findings   is

deferential.

       The findings of a judge of the orphans’ court division, sitting
       without a jury, must be accorded the same weight and effect as
       the verdict of a jury, and will not be reversed by an appellate
       court in the absence of an abuse of discretion or a lack of
       evidentiary support. This rule is particularly applicable to findings
       of fact which are predicated upon the credibility of the witnesses,
       whom the judge has had the opportunity to hear and observe,
       and upon the weight given to their testimony. In reviewing the
       Orphans’ Court’s findings, our task is to ensure that the record is
       free from legal error and to determine if the Orphans’ Court's
       findings are supported by competent and adequate evidence and

____________________________________________


1
  The Orphans’ Court relied upon the record of the hearing conducted before
the Register of Wills as well as argument briefs prepared by the parties.



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      are not predicated upon capricious disbelief of competent and
      credible evidence.

      When the [Orphans’] Court has come to a conclusion through the
      exercise of its discretion, the party complaining on appeal has a
      heavy burden. It is not sufficient to persuade the appellate court
      that it might have reached a different conclusion if, in the first
      place, charged with the duty imposed on the court below; it is
      necessary to go further and show an abuse of the discretionary
      power. An abuse of discretion is not merely an error of
      judgment, but if in reaching a conclusion the law is overridden or
      misapplied,     or   the   judgment     exercised    is   manifestly
      unreasonable, or the result of partiality, prejudice, bias or ill-will,
      as shown by the evidence of record, discretion is abused. A
      conclusion or judgment constitutes an abuse of discretion if it is
      so lacking in support as to be clearly erroneous.... If the lack of
      evidentiary support is apparent, reviewing tribunals have the
      power to draw their own inferences and make their own
      deductions from facts and conclusions of law. Nevertheless, we
      will not lightly find reversible error and will reverse an orphans'
      court decree only if the orphans' court applied an incorrect rule
      of law or reached its decision on the basis of factual conclusions
      unsupported by the record.

In re Jerome Markowitz Trust, 71 A.3d 289, 297-298 (Pa. Super. 2013)

(citation omitted).

      “When the Orphans’ Court arrives at a legal conclusion based on

statutory interpretation, our standard of review is de novo and our scope of

review is plenary.” In re Estate of Fuller, 87 A.3d 330, 333 (Pa. Super.

2014) (citation omitted).

      “The death of a spouse during the pendency of a divorce proceeding

abates the divorce action and any and all claims for equitable distribution.”

In re Estate of Cochran, 738 A.2d 1029, 1031 (Pa. Super. 1999) (citation

omitted). “However, the Probate, Estates and Fiduciaries Code (the “Probate

Code”)   ‘contains    substantial   provisions   designed   to   insure   the   fair


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distribution of the marital estate upon the death of one spouse.’” Id.

(citation omitted). The relevant section of the Probate Code provides as

follows.

      § 2106. Forfeiture

      (a)   Spouses share.—

      (1)   A spouse who, for one year or upwards previous to the
            death of the other spouse, has willfully neglected or
            refused to perform the duty to support the other spouse,
            or who for one year or upwards has willfully and
            maliciously deserted the other spouse, shall have no right
            or interest under this chapter in the real or personal estate
            of the other spouse.

20 Pa.C.S.A. § 2106(a)(1).

      The Pennsylvania Supreme Court has recognized that

      the mere fact of separation does not create a presumption of
      willful and malicious desertion. In re Estate of Kostick, 514 Pa.
      591, 594, 526 A.2d 746,748 (1987). See also Lodge's Estate,
      287 Pa. 184, 186, 134 A. 472, 473 (1926) (“Mere separation is
      not desertion, there must be an actual abandonment of
      matrimonial cohabitation with intent to desert, willful and
      persisted in without cause.”). Thus, where an allegation of
      desertion is based on separation, the party advocating forfeiture
      must prove there was a desertion without cause or consent of
      the other spouse. In re Estate of Fisher, 442 Pa. 421, 424,
      276 A.2d 516, 519 (1971). However, once such a showing has
      been made, the parties' separation is presumed a willful and
      malicious desertion and the burden shifts to the surviving spouse
      to prove the contrary. Id.

Estate of Cochran, 738 A.2d at 1031 (internal quotes omitted).

      Racht contends on appeal that any failure on her part to “perform the

duty to support” the decedent “was the result not of refusal or willful neglect




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on her part but rather the refusal to accept her spousal services[.]”

Appellant’s Brief at 9. Racht’s argument is unavailing.

       A panel of this Court (and which was authored by this writer) recently

decided a factually similar case in In re Estate of Talerico, --- A.3d ---,

2016 WL 1077968 (Pa. Super., filed March 18, 2016). In Talerico, Husband

moved out of the marital residence due to marital difficulties. See id. at *1.

Wife thereafter initiated divorce proceedings, and the parties continued to

live   separately   and   eventually   both   Husband   and   Wife   engaged   in

extramarital relationships. See id. Wife subsequently died prior to the

finalization of the divorce proceedings. See id. When Husband sought and

was granted Letters of Administration to Wife’s estate, Wife’s sister filed a

notice of claim against Wife’s estate, maintaining Husband had forfeited his

claim as surviving spouse pursuant to 20 Pa.C.S.A. § 2106(a)(1) because of

his post-separation conduct. See id. at *2. The trial court agreed.

       On appeal, the panel affirmed the Orphans’ Court’s finding that

Husband had forfeited his right to a spousal share of decedent’s estate.

Specifically, we determined that Husband’s extramarital affairs following the

parties’ consensual separation “gave rise to an inference of willful and

malicious desertion that Husband has failed to rebut” such that the forfeiture

provision of Section 2106(a)(1) of the Probate Code applied. Id. at *4

(citing In re Crater’s Estate, 93 A.2d 475, 478 (Pa. 1953) (“[W]here a

separation has its inception in mutual consent of the parties, it becomes a

wil[l]ful and malicious desertion on the part of the spouse who thereafter is

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guilty of conduct violative of the marriage vows.” (citations omitted))). We

further    found   Husband’s   argument   that   Wife   had   first   engaged   in

extramarital affairs to be irrelevant to our analysis. See id. (citing In re

Archer’s Estate, 70 A.2d 857, 860 (Pa. 1950) (“[W]here there had been a

separation by mutual consent and thereafter both spouses enter into

adulterous relationships with paramours, neither spouse may share in the

other’s estate, irrespective of who was the first to transgress.”) (emphasis

added)).

      We find the reasoning espoused in Talerico applies equally to the

instant case. It is undisputed that Racht and the decedent separated in April

2007. Thereafter, the parties maintained separate residences and remained

financially independent. Racht commenced divorce proceedings later that

year in August 2007 and following a period of inactivity again sought

reinstatement of the proceedings in 2011. During that time, both Racht and

the decedent engaged in extramarital affairs. Thus, irrespective of which

party first engaged in an extramarital relationship, our case law is clear that

Racht’s extramarital relationships following her separation from the decedent

but prior to the finalization of divorce gives rise to a willful and malicious

desertion under Section 2106(a)(1) of the Probate Code. See In re

Archer’s Estate, supra; In re Crater’s Estate, supra.

      We are unpersuaded by Racht’s claim that her separation from the

decedent was not consensual. Although Racht maintains that the decedent

barred her from the marital residence upon his return from New Jersey, she

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admits that she never returned to live at the marital residence and there is

no evidence that Racht made any serious or continued attempts at

reconciliation. Moreover, even if Racht had initially wished to engage in

reconciliatory attempts, this Court has astutely recognized that “the essence

of a separation can be transformed, so that a separation, non-consensual at

the outset, can become a separation which is consensual on the part of both

spouses[.]” Estate of Fulton, 619 A.2d 280, 285 (Pa. Super. 1993). As

noted, Racht filed for divorce several months after separation, maintained

her own residence and financial independence upon her return to Jackson

Township, and engaged in several extramarital relationships. Racht’s

conduct later in the relationship at the very least evidences a tacit consent

to the separation.

      Based on the foregoing, and in light of our deferential standard of

review, we can find no abuse of discretion in the Orphans’ Court’s

determination that Racht had forfeited her spousal share in the decedent’s

estate pursuant to 20 Pa.C.S.A. 2601(a)(1). Accordingly, we affirm the

court’s order sustaining the decision of the Register of Wills to revoke the

Letters   of   Administration   to   Racht,   and   to   re-issue   the   Letters   of

Administration to decedent’s sister.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/2016




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