J-A08021-17

2017 PA Super 315

IN RE: ESTATE OF MICHAEL J. 

EASTERDAY, DECEASED

IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: COLLEEN A. EASTERDAY

No. 2911 EDA 2016

Appeal from the Order Entered March 22, 2016

In the Court of Common Pleas of Montgomery County

Orphans' Court at No(s): 46-2014-X3615

*****

IN RE: ESTATE OF MICHAEL J. 

EASTERDAY, DECEASED

IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: MATTHEW M. EASTERDAY

No. 2946 EDA 2016

Appeal from the Order Entered March 22, 2016

In the Court of Common Pleas of Montgomery County

Orphans' Court at No(s): 46-2014-X3615

BEFORE: PANELLA, J., LAZARUS, J., and STEVENS, P.J.E.*

OPINION BY LAZARUS, J.: FILED OCTOBER 03, 2017

These are cross-appeals from the order entered in the Court of 

Common Pleas of Montgomery County, Orphans’ Court Division, adjudicating 

the rights of the parties with respect to pension and insurance benefits 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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payable as a result of the death of Michael Easterday (“Decedent”). Upon 

review, we affirm.

Decedent died intestate on September 21, 2014. He was survived by 

two sons, Christopher and Matthew, a daughter, Amanda E. Easterday 

Melvin, and his second wife, Colleen A. Easterday. Matthew was granted 

letters of administration on the Decedent’s estate. Just over one year prior 

to the Decedent’s death, on August 13, 2013, Colleen initiated divorce 

proceedings against the Decedent in Lancaster County. Colleen was 

represented in the divorce action by David R. Dautrich, Esquire. Decedent 

did not retain counsel. The parties executed a postnuptial agreement 

(“PNA”) on December 5, 2013, wherein they agreed, inter alia, to waive any 

rights in and to the pension and retirement plans of the other, including any 

right the parties may have as a surviving spouse or beneficiary thereof. The 

agreement provided that it was to remain in full force and effect regardless 

of reconciliation, a change in marital status or the entry of a final divorce 

decree, absent modification or termination of the agreement by the parties’ 

written mutual consent. The parties never terminated or modified the 

agreement.

In November 2013, Attorney Dautrich’s office prepared an affidavit of 

consent to divorce for Decedent’s signature and gave the document to 

Colleen to give to Decedent to sign. Decedent signed the affidavit on 

November 30, 2013 and returned it to Colleen by hand. Colleen retained the 

affidavit in her possession for a period of time before returning it to her 
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counsel for filing on or before January 14, 2014. Attorney Dautrich was 

aware that Decedent’s affidavit was dated more than thirty days earlier. 

Nevertheless, he instructed his staff to mail both parties’ affidavits of 

consent to the Lancaster County Prothonotary for filing, which was done on 

January 14, 2014. The affidavits were time-stamped by the court on 

January 16, 2014. On January 24, 2014, Colleen filed a praecipe for 

divorce finalization and a praecipe to transmit the record. Decedent died 

before the decree was entered. At the time of Decedent’s death, Colleen 

remained the named beneficiary of Decedent’s pension and life insurance 

policy. Three days after Decedent’s death, Colleen withdrew the divorce 

action.

On November 17, 2014, Matthew Easterday, as administrator of the 

Decedent’s estate (“Estate”), filed a petition seeking to compel Colleen to 

preserve and turn over to the estate the life insurance proceeds and pension 

benefits she had received. The Estate argued that: (1) the parties’ PNA 

controlled the disposition of the pension proceeds and required that 

distribution be made to the estate regardless of the beneficiary designation; 

and (2) Decedent’s designation of Colleen as beneficiary of his insurance 

policy became ineffective under 20 Pa.C.S.A. § 6111.2. 

In her answer and new matter, Colleen asserted that: (1) the PNA did 

not control the distribution of the pension proceeds because the parties 

never changed beneficiary designations; (2) section 6111.2 does not apply 

because the Decedent’s affidavit of consent was stale and invalid; and (3) 
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the parties were in the process of reconciling prior to Decedent’s death and 

Decedent intended that Colleen should remain the beneficiary of both his 

pension and insurance policies.

After a hearing held on October 20, 2015, and following the 

submission by the parties of memoranda of law, the Honorable Stanley Ott 

issued an order granting the Estate’s petition in part and denying it in part. 

Specifically, the court concluded that the Estate was entitled to the 

Decedent’s pension benefits pursuant to the PNA, but Colleen was entitled to 

the insurance proceeds, which were not addressed in the PNA. Both parties 

filed exceptions, which, after oral argument before the Orphans’ Court sitting 

en banc, were deemed denied by operation of law pursuant to Pa.O.C.R. 

7.1(f). These timely consolidated appeals followed.

The Estate raises the following issues on appeal:

1. Whether the Orphans’ Court committed an error of law by 

holding that the Superior Court’s decision in Tosi v. Kizis, 8[5] 

A.3d 585 ([Pa. Super.] 2014), appeal den’d, 626 Pa. 700, 

applies in the present case, and that Tosi required the Orphans’ 

Court to consider the merits of the Estate’s [p]etition under the 

legal fiction that there were no divorce proceedings pending at 

the time of Decedent’s death, despite the factual reality that 

there was a divorce action filed by Colleen A. Easterday against 

the Decedent and which was pending in Lancaster County at the 

time of the Decedent’s death.

2. Whether the Orphans’ Court committed an error of law by not 

ruling that 20 Pa.C.S. § 6111.2 applies to this case to invalidate 

Decedent’s designation of Colleen A. Easterday as beneficiary of 

Decedent’s American General Life Insurance Policy because 

Decedent died domiciled in Pennsylvania during the course of 

divorce proceedings, no decree of divorce had been entered, but 
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grounds for divorce had been established pursuant to 20 

Pa.C.S.A. § 3323(g) prior to Decedent’s death.

Appellant’s Brief of Estate, at 6-7. 

In her consolidated appeal, Colleen raises the following issue for our 

review:

Did the Decedent make a deliberate and conscious choice that 

his wife was to be the irrevocable beneficiary of his Fed-Ex 

pension plan and that she was to receive those benefits after his 

death, even though a post-nuptial agreement contained a waiver 

signed by her regarding the Fed-Ex ERISA pension?

Appellant’s Brief of Colleen Easterday, at 4. 

We begin by noting our scope and standard of review of a decision of 

an Orphans’ Court. The findings of a judge of the Orphans’ Court, 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. In re Estate of 

Talerico, 137 A.3d 577, 580–81 (Pa. Super. 2016), quoting In re Jerome 

Markowitz Trust, 71 A.3d 289, 297–98 (Pa. Super. 2013). 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. Id. 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. Id., 

quoting In re Estate of Fuller, 87 A.3d 330, 333 (Pa. Super. 2014) 

(citation omitted).
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We begin with the claims raised by the Estate challenging the lower 

court’s award of the life insurance proceeds to Colleen. The Orphans’ Court 

concluded that, because Colleen withdrew the divorce action after Decedent 

died, the proper course was to proceed as if the action had never been filed 

and award the proceeds in accordance with the policy’s beneficiary 

designation. The court found the provision of the Probate, Estates and 

Fiduciaries (“PEF”) Code regarding the effect of a pending divorce on 

beneficiary designations, section 6111.2, to be inapplicable.1 The court 

concluded that this result was compelled by this Court’s holding in Tosi v. 

Kizis, 85 A.3d 585 (Pa. Super. 2014).2 The Estate argues that the Orphans’ 

____________________________________________

1 Section 6111.2 provides that, where a domiciliary of the Commonwealth 

designates his spouse as beneficiary of a life insurance policy and dies (1) 

during the course of divorce proceedings in which (2) no decree of divorce 

has been entered and (3) grounds have been established as provided in 23 

Pa.C.S.A. § 3323(g), the spousal designation becomes ineffective for all 

purposes and must be construed as if the spouse or former spouse had 

predeceased the individual. 20 Pa.C.S.A. § 6111.2. 

2

In Tosi, Husband died during the pendency of divorce proceedings. At the 

time of Husband’s death, both he and Wife had filed affidavits of consent, 

thus establishing grounds for divorce under section 3323. Four months after 

Husband’s death, Wife filed a praecipe to discontinue the divorce action 

pursuant to Pa.R.C.P. 229. The trial court denied Husband’s estate’s petition 

to strike the discontinuance. On appeal, the estate asserted that, once the 

parties both filed affidavits of consent, section 3323(d.1) of the Divorce Code 

mandated that the parties’ economic claims be resolved pursuant to the 

Divorce Code and that the court erred in allowing Wife to discontinue the 

action. 

In affirming the trial court, this Court concluded that Wife’s power to 

discontinue the action under Rule 229 was not preempted by section 

3323(d.1). Rather, the Court found that “the language of [section 

(Footnote Continued Next Page)
J-A08021-17

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Court erred in applying Tosi and, consequently, in failing to apply section 

6111.2. The Estate asserts that the holding in Tosi is a narrow one, limited 

to situations in which a party to a divorce action files a discontinuance 

seeking to avoid the application of equitable distribution rules after the death 

of the other party. Because neither Michael Easterday nor his estate ever 

sought equitable distribution under the Divorce Code, the Estate claims that 

this matter is outside the scope of the holding in Tosi. Rather, the Estate 

asserts, the disposition of the insurance proceeds is governed by section 

6111.2, the application of which, it claims, is fixed as of the date of a 

decedent’s death. 

To the extent the decision of the Orphans’ Court in this matter was 

grounded in the rationale of Tosi, it is unsound. In Tosi, Husband died 

during the pendency of divorce proceedings. At the time of Husband’s 

death, both he and Wife had filed affidavits of consent, thus establishing 

grounds for divorce under section 3323. Four months after Husband’s 

death, Wife filed a praecipe to discontinue the divorce action pursuant to 

Pa.R.C.P. 229. The trial court denied Husband’s estate’s petition to strike 

the discontinuance, and the estate appealed. On appeal, the estate asserted 

(Footnote Continued) _______________________

3323(d.1)] merely provides that in the event of [the] death of one of the 

parties in a divorce action, the action may continue and the economic claims 

shall be determined under equitable distribution principles rather than under 

the elective share provisions of the [PEF] Code.” Tosi, 85 A.3d at 589 

(emphasis added).
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that, once the parties both filed affidavits of consent, section 3323(d.1) of 

the Divorce Code mandated that the parties’ economic claims be resolved 

pursuant to the Divorce Code and that the court erred in allowing Wife to 

discontinue the action. 

In affirming the trial court, this Court concluded that Wife’s power to 

discontinue the action under Rule 229 was not preempted by section 

3323(d.1). Rather, the Court found that “the language of [section 

3323(d.1)] merely provides that in the event of [the] death of one of the 

parties in a divorce action, the action may continue and the economic claims 

shall be determined under equitable distribution principles rather than under 

the elective share provisions of the [PEF] Code.” Tosi, 85 A.3d at 589 

(emphasis added).

In deciding this matter, the Orphans’ Court concluded that, as Colleen 

had withdrawn the divorce action subsequent to Decedent’s death, the 

holding in Tosi required him to proceed as though no divorce had ever been 

filed, which resulted in Colleen being entitled to the insurance proceeds as 

named beneficiary. Because the court proceeded under the fiction that the 

divorce action had never been filed, section 6111.2 did not apply to 

invalidate the beneficiary designation.

However, prior to the court’s decision in this matter, on May 6, 2015, 

our Supreme Court adopted Rule of Civil Procedure 1920.17, effective July 1, 

2015. Rule 1920.17 provides, in relevant part, as follows:
J-A08021-17

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(d) In the event one party dies during the course of the divorce 

proceeding, no decree of divorce has been entered and grounds 

for divorce have been established, neither the complaint nor 

economic claims can be withdrawn except by the consent of the 

surviving spouse and the personal representative of the 

decedent. If there is no agreement, the economic claims shall 

be determined pursuant to the Divorce Code[.]

Pa.R.C.P. 1920.17(d). The note to Rule 1920.17 specifically provides that 

“[t]o the extent that Tosi [] holds that 23 Pa.C.S. 3323(d.1) does not 

prevent the plaintiff in a divorce action from discontinuing the divorce action 

following the death of the defendant after grounds for divorce have been 

established, it is superseded.” Pa.R.C.P. 1920.17(d), note.3 

In adopting Rule 1920.17, the Court signaled its disapproval of the 

broad effect of Tosi, which effectively granted any surviving spouse the 

unilateral power to determine whether the assets of the deceased spouse 

would be distributed under the Divorce Code or the PEF Code, based solely 

on the self-interest of the surviving spouse, where grounds for divorce had 

been established. New Rule 1920.17 addresses this inequity by requiring 

that, where grounds have been established, a discontinuance may only be 

granted if the personal representative of the deceased spouse consents.

The Supreme Court superseded Tosi specifically as it applied to 

section 3323(d.1) of the Divorce Code, and did not address the possible 

____________________________________________

3 We note that neither the Orphans’ Court nor either of the parties 

acknowledged the adoption or impact of Rule 1920.17.
J-A08021-17

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application of its rationale to section 6111.2 of the PEF Code.4 However, we 

believe that the Court’s adoption of Rule 1920.17 provides a clear indication 

that the Court would look with similar disfavor upon an interpretation of 

section 6111.2 that would grant a surviving spouse/plaintiff the power to 

negate the intent of the statute – to protect a divorcing spouse from 

inadvertently providing a windfall to his or her surviving ex-spouse simply by 

neglecting to change a beneficiary designation – by discontinuing the divorce 

action after grounds have been established. Thus, we decline to apply Tosi

to the instant matter and hold that the Orphans’ Court erred by doing so.

Having concluded that Tosi is not dispositive, we must determine 

whether section 6111.2 applies to invalidate Decedent’s designation of 

Colleen as beneficiary of his insurance policy. To that end, the key inquiry in 

this matter becomes whether or not grounds have, in fact, been established 

pursuant to 23 Pa.C.S.A. § 3323(g), such that the disposition of the 

insurance proceeds is determined under section 6111.2. 

Section 3323(g) provides that where, as here, the parties are 

proceeding under section 3301(c) of the Divorce Code – the “no fault” 

provision – grounds are established where both parties have filed affidavits 

of consent. Pursuant to Pa.R.C.P. 1920.42(b), affidavits of consent must be 

filed (1) ninety days or more after filing and service of the complaint and (2) 

____________________________________________

4 Section 6111.2 was not at issue in Tosi. 
J-A08021-17

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within thirty days of the date the consents are executed. In this case, the 

Decedent’s affidavit was filed more than thirty days after it was executed, in 

violation of Rule 1920.42. As a result, Colleen asserts, the Decedent’s 

affidavit was invalid5 and grounds were never established under section 

3323(g). Accordingly, she argues, section 6111.2 does not apply.

The Estate, on the other hand, argues that, while strict compliance 

with the time limitations under Rule 1920.42(b) may be necessary to obtain 

a final decree of divorce, “section 3323(g), to which [s]ection 6111.2 refers, 

clearly contains no such time limitation.” Appellant’s Brief of Estate, at 31. 

The Estate asserts that neither section 3323(g) nor section 6111.2 imposes 

a time limit on the filing of the affidavits, nor do they explicitly incorporate 

the limits set forth in Rule 1920.42(b). As such, Decedent’s otherwise 

untimely affidavit was sufficient, under the facts of this case, to establish 

grounds and require the application of section 6111.2.

Alternatively, assuming, arguendo, that the thirty-day limitation 

applies, the Estate asserts that this Court “has viewed untimely affidavits as 

valid to establish grounds for divorce under section 3323(g) . . . for various 

purposes, including a request to bifurcate a divorce claim from economic 

claims.” Id. at 33, citing Bonawits v. Bonawits, 907 A.2d 611 (Pa. Super. 

____________________________________________

5 The Orphans’ Court found the issue of the validity of Decedent’s affidavit of 

consent to be a “red herring” in light of its determination that Tosi was 

dispositive and, thus, did not make a determination on the issue. 
J-A08021-17

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2006). Accordingly, strict compliance with the thirty-day time limit is not 

necessary to establish grounds for divorce under sections 3323 and 6111.2, 

and “a minor technical violation of a procedural rule should not invalidate an 

affidavit of consent filed by a party.” Id. at 34. 

Finally, the Estate argues that Colleen is judicially estopped from 

arguing that Decedent’s affidavit was invalid because it was “disingenuous 

and directly contrary to the position she took in the [d]ivorce [a]ction.” Id.

at 35. Specifically, the Estate points to Colleen’s praecipe to transmit, 

wherein she requested the divorce court to enter a decree of divorce based, 

in part, on the fact that both parties had filed their affidavits of consent. 

Only now that it is in her interest that the affidavit be deemed invalid, the 

Estate asserts, does Colleen argue the opposite position. 

We first address the Estate’s contention that the time limitation for the 

filing of affidavits of compliance as set forth in Rule 1920.42 is inapplicable 

and, thus, Decedent’s affidavit, although untimely under the rule, was 

sufficient to establish grounds under section 3323(g). For the following 

reasons, we disagree.

The legislature has declared that “[t]he family is the basic unit in 

society and the protection and preservation of the family is of paramount

public concern.” 23 Pa.C.S.A. § 3102(a). In light of the various policy 

considerations favoring the protection of the family unit, the Rules of Civil 

Procedure preclude the entry of default judgments in the divorce context. 

See Pa.R.C.P. 1920.41. In keeping with these policy considerations and the 
J-A08021-17

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seriousness with which the dissolution of marriage is to be treated, Rule 

1920.42(b) requires that the parties’ affidavits of consent demonstrate a 

present intent to finalize a divorce by mandating that they be executed 

within thirty days of filing. Under the rule, stale affidavits may not form the 

basis for the entry of a final decree. 

Where one party dies during the pendency of a divorce action, the 

establishment of grounds takes on added significance, as it will be the 

determinative factor in whether the parties’ economic issues are settled 

under the Divorce Code or the PEF Code. In effect, section 3323(d.1) treats 

the establishment of grounds as the functional equivalent to the entry of a 

final decree, where the death of one party renders such finality impossible.6 

____________________________________________

6 Pennsylvania courts have long held that an action in divorce abates upon 

the death of either party and the death of a party prior to the entry of a final 

decree precludes the finalization of a divorce. See Taper v. Taper, 939 

A.2d 969, 973 (Pa. Super. 2007) (no statutory authority allows for entry of 

posthumous decree of divorce). However, in 2005, the legislature amended 

section 3323 of the Divorce Code to provide for the continuation of the 

action for economic purposes where one party dies prior to the entry of a 

final decree, but after grounds have been established. Under those 

circumstances, section 3323(d.1) directs a determination of the parties’ 

economic rights under principles of equitable distribution rather than under 

the provisions of the PEF Code. See 23 Pa.C.S.A. § 3323(d.1). Under the 

prior version of the statute, the death of one spouse prior to the entry of a

final decree resulted in the abatement of the action, leaving the surviving 

spouse to exercise his or her elective rights under the PEF Code. The 2005 

amendment demonstrates a recognition on the part of the legislature that 

the prior state of affairs “ma[de] it difficult to advise clients on whether to 

bifurcate divorce proceedings, because of the difficulties often involved in 

predicting whether equitable distribution would provide a more favorable 

result than the elective share procedure.” Id., cmt. In enacting section 

3323(d.1), the legislature provided certainty, as well as a mechanism to 

(Footnote Continued Next Page)
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Given the added significance the establishment of grounds acquires under 

such circumstances, it is reasonable to conclude that the legislature intended 

to require compliance with the same procedural requirements precedent to 

the entry of a divorce decree. Consequently, we conclude that a “stale” 

affidavit of consent is insufficient to establish grounds under section 

3323(g). 

The Estate also argues that, even if the Rule 1920.42 time limit 

applies, we should not require strict compliance with it, because doing so 

would elevate form over substance. While, under other facts, this argument 

might be persuasive, under the present circumstances, we find that waiving 

the requirement would not effectuate justice where the Decedent had an 

opportunity to rectify the untimely affidavit but, for whatever reason, chose 

not to do so. The following facts, stipulated to by the parties, are relevant to 

this determination. 

Diane Carroll, an employee at the law firm of Colleen’s attorney, was 

contacted by judicial staff in the Lancaster County Court of Common Pleas, 

who advised her that the Decedent’s affidavit of consent was stale and that 

he was required to sign and submit a new affidavit. Thereafter, on February 

6, 2014, Carroll prepared and mailed a letter to the Decedent, explaining 

(Footnote Continued) _______________________

effectuate the parties’ presumed intent which, but for the death of one of 

them, would have resulted in the entry of a final decree and a determination 

of their economic rights through equitable distribution. 
J-A08021-17

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that his original affidavit had been rejected as untimely and requesting that 

he sign and return a new affidavit, which Carroll enclosed for his signature. 

The day after she mailed that letter, Carroll spoke to the Decedent, 

explained the situation and told him that he would have to sign a new 

affidavit of consent. In the ensuing 71⁄2 months leading up to the Decedent’s 

death on September 21, 2014, Decedent failed to file the new affidavit or 

return it to Colleen’s counsel for filing. 

From these stipulated facts, it is far from clear that, at the time of his 

death, Decedent possessed a present intent to divorce, such that we should 

excuse the staleness of his affidavit of consent and conclude that grounds 

were established. If anything, Decedent’s inaction, after having explicitly 

been advised of the necessity to re-execute his invalid affidavit of consent, 

evidences an intent to delay the proceedings, if not terminate them. 

Accordingly, we decline the Estate’s invitation to overlook the affidavit’s 

untimeliness.

Finally, the Estate argues that Colleen is judicially estopped from 

asserting the invalidity of Decedent’s affidavit because she previously took a 

contrary position in the divorce action. Generally, under the doctrine of 

judicial estoppel, “a party to an action is estopped from assuming a position 

inconsistent with his or her assertion in a previous action, if his or her 

contention was successfully maintained.” In re Adoption of S.A.J., 838 

A.2d 616, 620 (Pa. 2003) (citation omitted). This argument may be quickly 

dispensed with by noting that, although Colleen’s counsel did file with the 
J-A08021-17

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prothonotary a praecipe to transmit the record on January 24, 2014, the 

document candidly noted that Decedent’s affidavit had been executed on 

November 30, 2013, more than thirty days earlier. When this fact was 

brought to counsel’s attention by the court, counsel made no argument that 

the affidavit’s untimeliness should be excused. Rather, counsel prepared a 

new affidavit for Decedent’s signature, mailed it to him, and contacted him 

to request that he re-execute the document. On these facts, it is readily 

apparent that the doctrine of judicial estoppel is inapplicable, most notably 

because, even assuming Colleen could be deemed to have previously taken 

a contrary position as to the affidavit’s validity, that contention was not 

“successfully maintained.” 

Based on the foregoing, we conclude that grounds for divorce were not 

established pursuant to section 3323(g). Consequently, section 6111.2 does 

not apply to invalidate Decedent’s beneficiary designation and the Orphans’ 

Court did not err in awarding the proceeds of the Decedent’s insurance 

policy to Colleen as the named beneficiary.7

We now turn to Colleen’s sole appellate claim. The Orphans’ Court 

ruled that the PNA entered into by the parties barred Colleen from retaining 

____________________________________________

7 Although our analysis differs from that employed by the Orphans’ Court in 

reaching its decision, we may affirm the lower court’s ruling on any basis. 

See Blumenstock v. Gibson, 811 A.2d 1029, 1033 (Pa. Super. 2002) 

(appellate court not limited by trial court’s rationale and may affirm on any 

basis).
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Decedent’s benefits under his FedEx pension plan and awarded them to the 

Estate. Colleen asserts that, despite the terms of the PNA, Decedent made a 

deliberate and conscious choice to give his Fed-Ex pension to Colleen after 

he died by making an irrevocable election that Colleen was to be the 

designated survivor beneficiary. Colleen cites the fact that she and the 

Decedent “remained in close contact, and that she assisted him with routine 

activities of daily living and was his constant and sole caretaker, up until the 

day that she found him dead[.]” Appellant’s Brief of Colleen Easterday, at 6-

7. Finally, Colleen asserts that the Employee Retirement Income Security 

Act (“ERISA”) preempts Pennsylvania state law, specifically section 6111.2 

of the PEF Code, as well as the terms of the parties’ PNA. Thus, she argues, 

she is entitled to retain the pension benefits. 

In response, the Estate asserts that the PNA – which was executed 

after the Decedent signed the pension beneficiary designation – clearly and 

unambiguously sets forth the parties’ waiver of their rights to each other’s 

pension benefits and that a written modification to the contrary was never 

executed by the parties. Moreover, the Estate asserts that the Decedent’s 

alleged intent to “gift” to Colleen his benefits is irrelevant, as Colleen 

affirmatively waived her right to retain the benefits, regardless of whether or 

not Decedent wanted her to have them. Furthermore, the Estate argues 

that any alleged reconciliation between the parties is similarly irrelevant, as 

the PNA specifically provides that it remains in full force and effect despite 

any reconciliation between the parties. Finally, while conceding that, under 
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ERISA, the Decedent’s plan administrators are precluded from disbursing his 

pension benefits to anyone other than Colleen as named beneficiary, the 

Estate asserts that ERISA does not invalidate or preempt Colleen’s state law 

waiver of her right to retain the pension proceeds once they are distributed 

to her. 

We begin our analysis by noting that a property settlement agreement 

is subject to the law governing contracts, and is to be reviewed as any other 

contract. Mazurek v. Russell, 96 A.3d 372, 378 (Pa. Super. 2014). 

Because contract interpretation is a question of law, our standard of review 

is de novo and our scope of our review is plenary. Id. When a contract is 

free from ambiguity, the court must interpret the contract as written. Id.

Only where the contract terms are ambiguous may the court receive 

extrinsic evidence to resolve the ambiguity. Id.

Under Pennsylvania law, spouses may waive their rights to each 

other’s pension benefits via a property settlement agreement, where such 

waiver is specific. Layne v. Layne, 659 A.2d 1048 (Pa. Super. 1995). In 

the instant matter, the parties’ agreement provides as follows:

11. PENSIONS, 401(K) and IRA: Husband and Wife shall each 

retain 100% of their respective stocks, pensions, retirement 

benefits, profit sharing plans, deferred compensation plans, etc. 

and shall execute whatever documents necessary to effectuate 

this agreement.

Post Nuptial Agreement, 12/5/13, at ¶ 11. 

1. Husband and Wife agree that any and all Pension, Profit 

Sharing or Deferred Compensation Plan of which Husband is a 

Participant, shall remain the sole property of Husband.
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. . .

5A. Wife hereby [w]aives any joint or survivor annuity 

benefits[.]

Id. at Exhibit “B” ¶¶ 1 & 5A.

The language of the parties’ agreement was clear and unequivocal 

regarding Colleen’s waiver of her rights to Decedent’s pension. In fact, 

Colleen does not dispute that, in executing the PNA, she effected a waiver of 

those rights. See Appellant’s Brief of Colleen Easterday, at 10 (“This is true 

even though [Decedent’s] wife, Colleen Easterday, signed a waiver giving up 

any right that she may have had in his pension.”). Because the PNA is clear 

and unambiguous on its face, extrinsic evidence is inadmissible. 

Accordingly, Colleen’s attempt to alter the terms of the written agreement 

with extrinsic evidence regarding Decedent’s “actual intent” and the parties’ 

alleged reconciliation must fail.8 

Colleen’s argument that her state law waiver is superseded by ERISA 

is similarly meritless. In support of this claim, Colleen relies on the decision 

of the United States Supreme Court in Egelhoff v. Egelhoff ex rel. 

Breiner, 532 U.S. 141 (2001). There, the Court held that statutes, such as 

____________________________________________

8

In any event, the Agreement clearly and unambiguously states that it is to 

remain in effect regardless of any reconciliation by the parties. See Post 

Nuptial Agreement, 12/5/13, at ¶ 1 (“[I]t is the intent of the parties that any 

cohabitation or reconciliation of the parties shall not render this Agreement 

null and void, but rather, this Agreement shall remain in full force and effect 

until specifically modified/revoked by subsequent addendum or 

agreement.”). The parties never modified or revoked the PNA.
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section 6111.2 of the PEF Code, that provide for automatic revocation, upon 

divorce, of any designation of a spouse as beneficiary of non-probate assets 

was preempted, as they applied to plans governed by ERISA, because such 

statutes directly conflict with the ERISA requirement that plans be 

administered, and benefits be paid, in accordance with plan documents. 

Colleen’s reliance is misplaced and her argument meritless.

In enacting ERISA, one of Congress’ chief policy goals was to ensure 

national uniformity, certainty, and efficiency in the administration and 

distribution of covered benefit plans. See id. (principal goal of ERISA to 

enable employers to establish uniform administrative scheme, providing set 

of standard procedures to guide processing of claims and disbursement of 

benefits). Thus, individual state statutes are preempted to the extent they 

conflict with ERISA’s requirement that plans be administered, and benefits 

be paid, in accordance with plan documents. 

In 2009, on facts similar to the matter sub judice, the Supreme Court 

decided Kennedy v. Plan Adm'r for DuPont Sav. & Inv. Plan, 555 U.S. 

285 (2009). There, a participant in an ERISA pension plan designated his 

wife as his sole beneficiary. The couple subsequently divorced, and the wife

waived her interest in her husband’s pension plan. However, the husband 

died without amending the pension plan documents to replace his ex-wife as 

the designated beneficiary. The husband's estate claimed a right to the plan 

proceeds, citing the ex-wife’s waiver. The plan administrator, however, 

relied on the husband’s designation form and paid the funds to the ex-wife. 
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The husband’s estate then sued the plan administrator to recover the 

benefits. The Supreme Court held that ERISA precluded the plan 

administrator from distributing the benefits to anyone but the named 

beneficiary, regardless of the existence of a valid waiver. 

The Court left open, however, the question of whether the estate could 

recover the benefits from the ex-wife after she received them from the plan 

administrator. This question was subsequently answered in the affirmative 

by the United States Court of Appeals for the Third Circuit in Estate of 

Kensinger v. URL Pharma, 674 F.3d 131 (3d Cir. 2012), in which the 

Court held, under facts nearly identical to Kennedy, that ERISA does not 

bar an estate from attempting to recover pension funds distributed to an exwife who had executed a waiver of rights to those funds. 

Similarly, here, ERISA presents no bar to the Estate’s recovery of 

pension funds distributed to Colleen. Colleen’s waiver was clear and 

unequivocal and is binding. The Estate is entitled, under principles of state 

contract law, to enforce the bargain entered into between Colleen and the 

Decedent. Accordingly, the Orphans’ Court did not err in ordering that 

Colleen turn over to the Estate all sums received to date as beneficiary of 

Decedent’s FedEx pension plan, as well as all remaining proceeds thereof 

that she is entitled to receive under the plan documents.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/3/2017