A husband’s separation from his wife and subsequent extramarital affairs deprived him of his right to an intestate share of her estate, the Pennsylvania Superior Court ruled in In re Estate of Kathleen Talerico, __ A.3d __ (No. 728 MDA 2015, filed March 18, 2016). Decedent Kathleen Talerico and Appellant Donald Talerico were married in 2006. They separated in 2010 and commenced divorce proceedings in 2011. The divorce was never finalized. Between 2011 and Decedent’s death on January 3, 2014, both Talerico and Decedent engaged in extramarital affairs. According to Talerico the couple’s marriage was tumultuous but they remained friends and he supported Decedent financially and emotionally after their separation. After Decedent died intestate, Talerico petitioned for letters of administration, which were granted. Decedent’s sister filed a notice of claim against the estate, which Talerico sought to dismiss on the basis that he and Decedent were married at the time of her death. The orphans’ court denied Talerico’s petition, holding that he forfeited his intestate share by virtue of his post-separation conduct. Talerico appealed.
On appeal, the Superior Court affirmed, holding that Talerico forfeited his spousal interest in Decedent’s estate under Section 2106(a) of the Probate, Estates and Fiduciaries Code, which states that a spouse who has “willfully and maliciously deserted” his or her decedent spouse shall have no right or interest in the estate. 20 Pa. C.S. §2106(a). Judge Panella wrote for the unanimous panel. In upholding the orphans’ court decision, the Court reasoned that because the couple’s separation was consensual, Talerico’s extramarital affairs gave rise to an inference of willful and malicious desertion that Talerico failed to rebut. The panel rejected as irrelevant Talerico’s argument that Decedent was the first to engage in an extramarital affair. The Court noted that, even though this case arose as a statutory forfeiture proceeding, the “decision stands as an acknowledgment that the separation of spouses, although not finalized by divorce, should be given effect even following the death of a spouse.”