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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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