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the payee custodial spouse died, because the statute and caselaw
grant courts continuing jurisdiction over support matters and
require a petition to modify or terminate support payments. See
Edelstein v. Edelstein, 582 A.2d 1074, 1077 (Pa. Super. Ct.
1990). In Gonzales v. Commissioner, T.C. Memo. 1999-332, we held
(applying New Jersey law) that, when a separation instrument is
modifiable, the noncustodial payor spouse could have remained
liable to pay support under the separation agreement after the
payee spouse’s death.
Mr. Hawley contends that the doctrine of abatement applies
to the instant cases, and thus the unallocated support order
would terminate upon Ms. Gilbert’s death. Before the entry of
divorce in Pennsylvania, divorce actions abate upon the death of
one of the parties. Haviland v. Haviland, 481 A.2d 1355, 1356
(Pa. Super Ct. 1984) (citing Matuszek v. Matuszek, 52 A.2d 381
(Pa. Super. Ct. 1947)).10 Economic claims for equitable
10Haviland v. Haviland, 481 A.2d 1355 (Pa. Super Ct. 1984),
held that the Pa. Divorce Code applies in pari materia with the
Probate Code, and the Divorce Code applies only to living
spouses. Id. at 1357. However, in dicta, Teribery v. Teribery,
516 A.2d 33, 37-38 (Pa. Super. Ct. 1986), stated that “Should
either party die or become disabled, for example, a petition for
modification can be filed to reflect changed circumstances.” A
court need not consider all contingencies in ordering unallocated
support, because it may consider a change in circumstances, such
as death, when raised by petition. Edelstein v. Edelstein, 582
A.2d 1074, 1077 (Pa. Super. Ct. 1990) (citing Teribery v.
Teribery, supra). Under those cases, unallocated support
payments may continue after the death of the payee custodial
spouse, at least temporarily, until there has been a petition
filed to modify the unallocated support order.
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