Ex Wives and beneficiary

[Guest dulan]

My brother had three ex wives. He recently passed away unexpectly.

He was divorced from wife number 3 for 4 years and they had in there divorce decree that neither one had any rights to the any retirement benefit they each had.

He was divorced from wife number 2 about 15 years ago and it seems that she is the name on the 401K benefit form.

He never had her name removed during the time he was married to wife number 3, I realize that wife 3 was the beneficiary by law even if her name was not on file.

On one section of the beneficiary designation form it states that the employee sometimes might divorce and not change the former spouses name and then remarry and if the employee should die the plan would consider the former spouse on file the beneficiary.

Does this last wife break the chain of the former wife (number 2) from being the beneficiary?

He did not have any children.

How does the ERISA law apply to a situation like this?

I know he did not want either ex wife to have any thing he had.

Thanks for any help.

Dulan

[QDROphile]

You have to see what the plan says. While it is true that spouses have certain rights, it is also true that plan procedures prevail, and if the plan provides for payment to a beneficiary, the plan will pay the beneficiary unless spouse rights trump the beneficiary designation. Plan procedures will also also determine if the designation of #2 will weather the interim rights of #3 to become effective again after #3's rights lapse.

[Guest dulan]

You have to see what the plan says. While it is true that spouses have certain rights, it is also true that plan procedures prevail, and if the plan provides for payment to a beneficiary, the plan will pay the beneficiary unless spouse rights trump the beneficiary designation. Plan procedures will also also determine if the designation of #2 will weather the interim rights of #3 to become effective again after #3's rights lapse.

The company attorney does not know which wife would be correct.

They are trying to find out from ERISA.

I do not have a copy of the plan summary.

Thanks,

Dulan

[QDROphile]

The plan fiduciary then needs to hire competent counsel. The fiduciary will have to interpret the document. ERISA will not provide and answer by itself. If ERISA provided and answer by itself, my guess would be that #2 wins. ERISA says do what the plan documents say (unless the pan documents are contrary to ERISA) and the beneficiary designation is a plan document. ERISA does not care if someone forgets to change a beneficiary designation and does not presume that failure to change is unintentional. Someone may point you to some federal decisions from Texas that try to incorporate state law into federal common law to get around the apparant injustice, but those cases are questionable in light of a Supreme Court decision about state law that tried to affect benficiaries of an ERISA plan.

[david rigby]

Would the marriage to #3 automatically invalidate the beneficiary designation of #2?

Might be a question for the plan administrator.

The most important advice here is

"The plan fiduciary then needs to hire competent counsel."

[Disco Stu]

Would the marriage to #3 automatically invalidate the beneficiary designation of #2?

Might be a question for the plan administrator.

So, isn't the question that is ultimately being asked here:

Does the divorce from #3 mean that the participant died without a named beneficiary?

[Guest Dale E. Stevens]

Dulan:

Can you tell us what state your brother was residing at the time of his death?

Seek competent ERISA legal counsel to assist you with this issue.

Ultimately, if I had to guess, after all is said and done, wife #2 (in your scenario) the last designated benefiicary will be deemed the beneciary and receive the proceeds of the account.

[Guest dulan]

My brother lived in GA.

I did find out that wife 2 also waived any rights to any retirements.

So both ex wives signed in the divorce decree that they didn't have any claim to retirements.

I think the wording was something like each party's retirement plans, checking and savings would remain there sole possession. This is written in the divorce decree for my brother to sign and the ex wifes.

The attorney has the papers so I don't remember the exact wording.

My understanding is that my brothers estate will have to take up legal matters outside of the plan with the second wife.

I don't understand why the company does not want to give the summary plan benefit out.

I got a call from someone that worked at the company and they said that we should get in touch with Fidelity to have them send papers to file a appeal, but they would not say who the beneficary was.

I almost think they were doing this to be helpful. I am the administrator of his estate and I wrote the company and Fidelity requesting a copy of the summary plan and who the beneficary was of his 401K.

It was after I got an attorney that I got the information. I have never gotten anything in the mail.

Some of my brothers friends stay in touch with me and after I let them know that my brother never got the second wife off as his beneficary of his 401K. some of them started to make calls to find out who was down as theirs.

They could not find out who was on there record, they are having to submit new paper work.

I can see how someone would not know who they had for a beneficary if they don't have access to that information from there own plaln.

Thanks ,

Dulan