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GRETCHEN OSWALD v. EVELYN M. OLDS (04/04/85)

filed: April 4, 1985.

GRETCHEN OSWALD, APPELLANT,
v.
EVELYN M. OLDS



No. 00813 Pittsburgh, 1983, Appeal from the Order of the Court of Common Pleas, Washington County, Civil Division, at No. 8028 In Equity.

COUNSEL

Robert N. Clarke, Washington, appellant.

Sidney Baker, Pittsburgh, for appellee.

Brosky, Watkins and Hester, JJ.

Author: Brosky

[ 342 Pa. Super. Page 497]

This appeal is from an order sustaining appellee's preliminary objections in an action over the right to the proceeds

[ 342 Pa. Super. Page 498]

    of a life insurance policy. The Court of Common Pleas of Washington County concluded that venue over this case did not lie with it.*fn1 The court erred in that regard. We hold that venue was proper.

On the substantive issue concerning the change in beneficiary and the proceeds of an insurance policy, we note that once appellant had notice of the beneficiary change, she should then have challenged that alteration, a right given her under the Divorce Code. In the instant case, having not done so for nearly a year, and death occurred in the meantime, she can not now be heard to assert it after her husband's death since the divorce action abated upon death. As equitable distribution is an incident of divorce, her right to that also ceased with her husband's death. Furthermore, the proceeds of a life insurance policy on a spouse cannot, by its nature, be property acquired during the marriage since it comes into being upon death and cannot, therefore, be marital property subject to equitable distribution.

The relevant facts are as follows. Appellant and the decedent, Isaac John Haviland, were married at the time a life insurance policy on Haviland was purchased from New York Life Insurance Company. Appellant was the designated beneficiary of this policy. In August of 1981 appellant commenced a divorce action. Subsequent to receiving process of this action, Haviland changed the beneficiary of the policy from appellant to appellee. Appellant was made aware of this change through answers to interrogatories in the divorce proceeding on March 23, 1982. However, during the next eleven months she made no objection in court to that change. Haviland died in February of 1983 while the divorce action was still in progress. Appellant then commenced suit against the carrier and the new beneficiary.

[ 342 Pa. Super. Page 499]

The carrier has since been allowed to withdraw from the case, with the proceeds of the policy ...


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