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Lawyers in several states are examining the legal question of posthumous divorces in light of recent probate law changes and a handful of unusual lawsuits that deal with spouses who died during divorce proceedings. In Pennsylvania, an attorney is seeking a first-of-its kind posthumous divorce settlement following the death of her client-a dentist who was killed in his home in April, the night before he was to sign divorce papers. Yelenic v. Yelenic, No. 10944 (Indiana Co., Pa., Ct. C.P. 2003). In Connecticut, divorce proceedings are still alive in the case of Andrew Kissel, a millionaire developer who was found murdered in his Greenwich home in April, nearly a year after his wife filed for divorce. Millions of dollars are at stake. Kissel v. Kissel, No. FST-FA-05-4003907-S (Stanford, Conn., Super. Ct.). Posthumous divorce litigation and revised probate laws has prompted family law expert Jonathan W. Wolfe to issue a word of warning to his clients. “If you have a will, it has to be changed immediately. And if you don’t have a will, you need to have one . . . because you are now in a position in your life where you don’t want your separate assets to go to the person you’re trying to divorce,” said Wolfe, who chairs the family law committee for the American Bar Association’s General Practice, Solo and Small Firm Division. Wolfe’s advice comes in the wake of recently revised state probate laws that could cause unintended results for married people with children who die while getting or contemplating a divorce. Specifically, intestacy laws could allow one spouse to inherit another’s entire estate, including assets that the other person didn’t want the spouse to have. Eighteen states revise laws In recent years, intestacy laws have been revised in 18 states, including Michigan, Montana, New Jersey, North Dakota and South Dakota. They are known as the Uniform Probate Code’s intestacy statute, which allows a spouse to potentially inherit all assets absent a will. Previous statutes allowed for children to inherit some of the assets. In light of New Jersey’s revised statute, in the last year, Wolfe said his law firm, Skoloff & Wolfe in Livingston, N.J., has drafted a substantial number of wills for divorcing clients who seek to protect certain assets from going to a spouse. Protecting assets is at the heart of the recent posthumous divorce case in Pennsylvania, where lawyers are working to ensure that the murdered husband’s assets go to the couple’s minor son, and not all to the wife. That case involves Dr. John Yelenic, who separated from his wife in 2002, agreed to a divorce and signed a property settlement. He was slain at his home on April 13, 2006. No arrest has been made. Yelenic’s lawyer, Effie Alexander, is seeking a posthumous divorce decree, saying that is what her client would have wanted. Alexander of Pittsburgh’s Reich, Alexander, Reisinger & Farrell, said that a key concern in the case, primarily for estate lawyers, is protecting a property settlement and ensuring various assets go to the couple’s minor son. On May 19, a judge rejected the request for the divorce decree, but gave Alexander more time to argue her case. Alexander has fashioned her case around a new state divorce code, revised last year, that allows a judge to posthumously enforce a property settlement if grounds for divorce were established before the spouse died. In Yelenic, she argued, part of the couple’s property settlement agreement was “we are going to get a divorce.” The wife’s lawyer, Daniel Lovette III of Kaminsky, Thomas, Wharton and Lovette in Johnstown, Pa., said he supports a posthumous divorce decree, but declined further comment. Yelenic’s estate lawyer, Paul Anthony Bell II of Simpson, Kablack & Bell in Indiana, Pa., was unavailable for comment. Meanwhile, family law expert Lynne Gold-Bikin, who heads the family law practice of Wolf, Block, Schorr and Solis-Cohen in Philadelphia, sees no logic to granting a dead man a divorce. She said that under Pennsylvania law, if grounds for divorce have been recognized, then the divorce proceedings continue, even if a spouse dies. “The court can proceed with dividing up the assets as if the divorce was still proceeding, and a representative would stand in the shoes of the dead person,” Gold-Bikin said. “If . . . the grounds had not accrued, then it’s as if divorce had never been filed and the person has been widowed.”

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