With the age of baby boomers continuing to increase, the issue of incompetency and the abatement of divorce or litigation of equitable distribution post the death of a divorced litigant is gaining more attention by family law practitioners.

Historically, prior to 2005, if either party to a divorce action died, Pennsylvania courts held that the divorce action abated. In other words, the divorce case died with the individual pending the issuance of a divorce decree. However, in 2005, the Pennsylvania Divorce Code was amended and provided an exception to abatement of divorce actions upon death. The exception is that if grounds for divorce are established prior to a party dying, though no divorce decree will granted posthumously, the economic rights and obligations of the parties are determined under the divorce code rather than the elective share provision of the probate code.