When Clients Fail to Change Beneficiary Designations After Divorce

What happens when clients fail to change their beneficiary designations after divorce? Here’s an analysis of state and federal law, and some practical suggestions for how to prevent the problem from happening in the first place.

By Leslie A. Shaner, Estate and Family Lawyer

At some point in a family law attorney’s career, a current or former client calls to tell you that his/her spouse or ex-spouse has died. The primary reason for the call will be that the deceased ex-spouse has failed to change some type of beneficiary designation/survivorship election on a nonprobate asset or has named someone other than the living ex-spouse as the beneficiary/survivor of a nonprobate asset as required under a property settlement agreement and/or final decree of divorce. The most common situation is that a deceased ex-spouse has failed to change the beneficiary designation/survivorship election for a nonprobate asset to either his/her new spouse or to anyone else – e.g., the parties’ children –and the living ex-spouse remains as the designated beneficiary on the nonprobate asset.

Addressing Non-Probate Assets in Divorce

Both equitable distribution or community property state statutes provide for the division of nonprobate assets in divorce.[1] Probate assets are those that pass to persons identified in a will; whereas, nonprobate assets pass outside an estate’s administration, typically by beneficiary designations/survivorship elections.  Examples of nonprobate assets include checking and savings accounts, qualified and non-qualified retirement plans, individual retirement accounts, private or group life insurance policies, annuities, mutual fund accounts, and certificates of deposit.  Nonprobate assets are frequently referred to as “will substitutes;” and, depending on the type of nonprobate asset, these assets can be governed by state law[2] or by a combination of state[3] and federal law.[4]

However, if nonprobate assets are sufficiently addressed in property settlement agreements or final decrees of divorce, attorneys can rest assured that, when call happens, no problems will arise after a death either before or after divorce.  If nonprobate assets are not sufficiently addressed during the divorce process, the results can be disastrous.  Statutes, as well as a body of case law, control the distribution of nonprobate assets upon death in the event these assets are not adequately addressed during the divorce process.  The questions presented when nonprobate assets are not sufficiently addressed is whether these issues are decided by the terms of property settlement agreements, final decrees of divorce, state revocation upon divorce statutes, state case law, and/or federal law.

Asking the Right Questions

Prior to the inevitable call about a death occurring, the first question attorneys must ask when dealing with nonprobate assets in divorce is whether their state statute addresses either the division of, or the beneficiary designations/survivorship elections of these types of nonprobate assets, particularly for group life insurance and retirement plans.[5]  If state statutes provide for beneficiary designations/survivorship elections to be addressed during the divorce process, the problems associated with divorce clients failing to change their beneficiary designations after divorce are far less likely to occur.

Revocation of Nonprobate Assets Upon Death Statute

The second question after the inevitable call occurring in is whether the state has a revocation of nonprobate assets upon death statute. There are at least twenty-three (23) states that have revocation of nonprobate assets upon divorce statutes.  The statutes in Alaska, Arizona, Colorado, Hawaii, Idaho, Minnesota, Montana, New Mexico, North Dakota, South Dakota, and Utah[6] are modelled upon § 2-804 of the Uniform Probate Code (UPC).[7]Oklahoma, Pennsylvania, Texas, Virginia, Washington, and Wisconsin, also have revocation of nonprobate assets upon divorce statutes that are loosely modelled after UPC § 2-804.[8] The most notable section of the revocation statutes  modelled after UPC § 2-804, as well as some of the other state revocation statutes, is that if the revocation statute is pre-empted by federal law that the former spouse who remains named as the beneficiary or survivor “…  is obligated to return that payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not pre-empted.”[9] (Emphasis added.)  Therefore, there is absolute liability for the return of the funds regardless of the circumstances.  This language does not create a constructive trust wherein a court would hold the funds until a determination of the disposition of the funds is made.

Notably, Arizona Idaho, Minnesota, and Utah which are modelled after UPC § 2-804 do not follow this model pre-emption provision.  The annotations for the Colorado, Montana, and North Dakota revocation statutes reference the decisions by the United States Supreme Court that are discussed below; however, these statutes have not been amended to reflect these decisions.  New York’s revocation statute does not contain the pre-emption language.  And, in New Jersey, in Juno v. Verizon Communs., Inc.,[10] which addressed New Jersey’s revocation upon divorce statute, determined that “… ERISA governs the outcome of this case.  Because ERISA broadly pre-empts ‘all state laws insofar as they may now or hereafter be related to any employee benefit plan’ covered by ERISA, ERISA pre-empts any application of N.J.S.A. 3B3-14(a).”[11] The annotations for N.J.S.A. 3B3-14(a) do not reference this case.  The Supreme Court of Pennsylvania, in the case of In re Sauers,[12] the Supreme Court of Pennsylvania found that its revocation upon divorce statute was pre-empted by ERISA.[13] However, Pennsylvania has not amended its revocation statute based on this decision.  The annotations for the California, Texas, and Wisconsin reference the decisions by the United States Supreme Court that are discussed; however, these statutes have not been amended to reflect these decisions. If you practice in a state that has a revocation statute, attorneys can be lulled into thinking that the revocation statute provides an easy solution to a deceased ex-spouse failing to change his/her beneficiary designation/survivorship election after divorce.  The statutes, on their face, provide that if a deceased ex-spouse fails to change a beneficiary designation/survivorship election after divorce, the beneficiary designation/survivorship election is automatically revoked; and, the proceeds will pass to those persons whom the revocation statute assumes the deceased would have wanted the proceeds to go.

Failure to Change Beneficiary Designations After Divorce: Federal Law vs. State Statutes

The third question after the inevitable call occurs is whether federal law trumps any state statute and/or state case law dealing with the disposition of nonprobate assets upon death following a divorce.  The majority of the litigation involving the failure to change beneficiary designations/survivorship elections for nonprobate assets after divorce occurs is governed by federal law.  At this juncture, attorneys must look to the decisions by the United States Supreme Court to determine the interaction between their state law, whether it is a revocation upon divorce statute or case law, to determine who receives the proceeds from the distribution of a nonprobate assets governed by federal law.  And, it must be remembered that the litigation generated under these circumstances is typically in federal court, as opposed to state court.  There have been five (5) decisions by the United States Supreme Court dealing with the failure of divorce clients to change their beneficiary designations/survivorship elections after divorce.  In 1950, Wissner v. Wissner, the United States Supreme Court determined that the National Service Life Insurance Act of 1940 pre-empted a California family law statute;[14] and, in Ridgeway v. Ridgeway in 1981, a Maine court had imposed a constructive trust upon the proceeds from a Servicemen’s Group Life Insurance policy.  The United States Supreme Court held that the imposition of a constructive trust was pre-empted by the provisions of the Servicemen’s Group Life Insurance Act of 1965.[15]

Recent Decisions

There are three (3) more recent decisions by the United States Supreme Court dealing with the failure of divorce clients to change their beneficiary designations/survivorship elections following divorce.  Each of the cases has different factual patterns, and each deals with a different federal and/or state law; however, all of the cases deal with divorce clients failing to change their designations following divorce.  The decisions are Egelhoff v. Egelhoff[16] decided in 2001; Kennedy v. DuPont Savings and Investment Plan[17] decided in 2009; and Hillman v. Maretta[18] decided in 2013.

Egelhoff v. Egelhoff

The first case, Egelhoff v. Egelhoff,[19] involved a situation where Mr. Egelhoff designated his wife as the beneficiary of his ERISA governed group life insurance policy and pension plan which he did not change following the divorce.  The husband’s children sued to recover the benefits under the ERISA group life insurance policy and pension plan under a Washington revocation of nonprobate assets upon divorce statute.[20]  In Egelhoff v. Egelhoff, the United States Supreme Court made clear that ERISA pre-empts certain aspects of revocation of nonprobate assets upon divorce statutes.[21]  Therefore, as a result of Egelhoff v. Egelhoff, the proceeds of the ERISA benefits are paid to persons who are named by employee in their employer’s plan documents.[22]  There were two overriding principles underlying the Egelhoff decision.  First, Congress provided that ERISA superceded state law dealing with employer-sponsored benefit plans; and, state law relating to the distribution of employer-sponsored benefit plans in divorce established the nexus between federal and state law involving employer-sponsored benefit plans.  Second, the goal of ERISA is to establish a uniform administrative scheme that provides a set of standard procedures to guide the processing of claims and disbursement of benefits.[23]  (Emphasis added.)  The portion of the Washington revocation statute that was pre-empted in Egelhoff is set forth in endnote 20.  If you practice in a state that has a revocation upon divorce statute, please compare the language of your applicable statute to the language of the Washington statute contained in endnote 20 to determine if there is a conflict between the revocation statute and the Egelhoff decision.

Despite the apparent bright line rule, i.e., the plan documents rule established in Egelhoff v. Egelhoff,[24] federal and state courts adopted a series of cases based on federal common law to avoid the perceived harshness of the plan documents rule in Egelhoff v. Egelhoff.  The application of federal common law in these situation required plan administrators to look examine the domestic relations statutes and case law in all fifty (50) states and the District of Columbia, as well as to examine the divorced individuals’ property settlement agreements and/or final decrees of divorce to try to glean what the parties intended regarding ERISA benefits.  Unfortunately, the application of federal common law to divorced clients’ failure to change their beneficiary designations/survivorship elections led to inconsistency rather than consistency.  A review of the cases where the federal common law approach is utilized indicates the inconsistency.  For example, some cases determined that, where there are waivers of ERISA benefits in property settlement agreements, waivers are effective to deny former spouses’ benefits, e.g., in defined contribution plans,[25] life insurance policies,[26] and pensions.[27]  On the other hand, some cases determine waivers of ERISA benefits in property settlement agreements are not effective to deny former spouses the ERISA benefits, e.g., life insurance policies.[28] And, in some cases, the courts found that even though the disposition of the proceeds was appropriately done by plan administrators and waivers were pre-empted by ERISA, the issue of waivers being effective was to be determined by a state court.[29]

Kennedy v. DuPont Savings and Investment Plan

The issue of the failure of clients to change their beneficiary designations after divorce once again came before the United States Supreme Court in 2009 in Kennedy v. DuPont Savings and Investment Plan[30] which  resolved the split among the federal courts of appeals and state supreme courts over (1) a divorced spouse’s ability to waive pension plan benefits through a divorce decree that does not constitute a Qualified Domestic Relations Order (QDRO) and (2) whether a beneficiary’s federal common law waiver of plan benefits is effective where the waiver is inconsistent with plan documents.[31]  In this case, Ms. Kennedy waived her interest in the DuPont Savings & Investment Plan (SIP), a defined contribution plan.[32]  In addition, the SIP had specific procedures in place to change beneficiary designations which Mr. Kennedy did not follow;[33]  and, the plan had provisions for Mrs. Kennedy to execute a qualified disclaimer of her interest in the SIP which she did not follow.[34]

Under ERISA, employee pension benefit plans cannot be assigned or alienated except by the terms and provisions of a QDRO.[35]  Since Mrs. Kennedy waived her interest in the SIP, she did not have an interest in the SIP which could be subject to a QDRO.  Therefore, the waiver in the property settlement agreement did not “…constitute an assignment or alienation rendered void under the terms of § 1056(d)(1).”[36]   The Kennedy decision, however, was not solely based on the Court’s determination regarding the ERISA anti-alienation clause or federal pre-emption of state law by ERISA.  Rather, the focus was on whether a beneficiary’s federal common law waiver of plan benefits in a property settlement agreement is effective where the waiver is inconsistent with plan documents. The Kennedy case wholly rejected the federal common law approach used by courts since the decision in Egelhoff v. Egelhoff. [37]   The focus in Kennedy was solely on the requirements of the plan documents under ERISA.[38]  It is the “plan documents rule,”[39] as opposed to federal common law developed throughout the federal circuits, that governs who takes survivorship benefits if the required designations are not changed following divorce.  Whatever provisions are made for beneficiary designations/survivorship elections that are found in the plan documents will be strictly adhered to when clients fail to correctly follow the required procedures.  However, Kennedy noted that questions about a waiver’s effect in circumstances where it is consistent with plan documents remain open. And, the Court did not express an opinion as to whether an estate could bring a state or federal action to obtain benefits after they are distributed.[40]

Between 2009 when Kennedy was decided and January, 2013, state and federal courts in Arizona,[41] California,[42] the District of Columbia, [43] Kentucky,[44] Massachusetts,[45] Michigan,[46] Minnesota,[47] Missouri,[48] Nebraska,[49] Nevada,[50] New Hampshire,[51] New Jersey,[52] New York,[53] Ohio,[54] South Carolina,[55] Tennessee,[56] Texas,[57] Virginia,[58] Washington,[59] and Wisconsin[60] have upheld Kennedy and found for former spouses.  Only the Arizona, California, Minnesota, Missouri, New Jersey, Ohio, Texas, Virginia, and Washington cases cited in the endnotes have revocation of nonprobate assets upon divorce statutes.  The remaining cases in the District of Columbia, Kentucky, Massachusetts, Michigan, Nevada, New Hampshire, South Carolina, and Tennessee do not.  With the exception of the New Jersey case cited above, while deciding that ERISA governed the distribution of the funds to former spouses, the courts failed to even cite the state’s revocation upon divorce statute in their opinions.

And, as noted above in the Kennedy case, the decision did “…not express any view as to whether the Estate could have brought an action in state or federal court against [the decedent’s ex-wife] to obtain the benefits after they were distributed.”[61]  As a result, some courts have held that state actions can be maintained to recoup the funds that were paid to former spouses if beneficiary designations were not changed prior to death.  This result was found in California,[62] Georgia,[63] Indiana,[64] Michigan,[65] New Jersey,[66] New York,[67] Pennsylvania,[68]  Texas,[69] and Virginia.[70] However, courts in Michigan[71] and Washington[72] have held that actions cannot be brought against designated beneficiaries.  And, in some cases where participants attempted to change beneficiary designations with plan administrators following divorce but failed, a substantial compliance argument has been raised.  This argument was rejected in New Jersey;[73] however, it was accepted in Alabama,[74] Connecticut,[75] Michigan,[76] New York,[77] and Pennsylvania.[78]

Even after the Kennedy decision, courts have continued to cite the 2001 decision in Egelhoff v. Egelhoff and the concept of federal common law to determine issues surrounding the failure of divorced clients to change their beneficiary designations following divorce.[79]  In addition, Egelhoff v. Egelhoff is cited where the doctrine of substantial compliance is raised. This doctrine was rejected in Indiana[80] and accepted in New York.[81]

Hillman v. Maretta

In January, 2013, the United States Supreme Court again addressed the issue of divorce clients failing to change their beneficiary designations/survivorship elections in Hillman v. Maretta.[82] The issue in Hillman was whether Va. Code Ann. § 20-111.1(D), Virginia’s Revocation of Death Benefits by Death or Annulment statute, was pre-empted by federal law.[83] This statute provides that if the statute is pre-empted by federal law that the former spouse “…is personally liable for the amount of the payment to the person who would have been entitled to it were this section not pre-empted.” (Emphasis added.)  The federal law involved in Hillman was 5 U.S.C. §§ 8701, et seq. (2013) which governs the distribution upon death of the life insurance proceeds under the Federal Employees Group Life Insurance Act (FEGLIA) where a divorce client failed to change his beneficiary designation.[84]

The decision for pre-emption[85] of the Virginia statute in Hillman v. Maretta by FEGLIA was unanimous. The decision noted that the “…regulation of domestic relations is traditionally the domain of state law,”[86] and there is a “…‘presumption against pre-emption’ of state laws governing domestic relations.”[87] However, in order to establish pre-emption of a state law by federal law, “…  family and family-property law must do ‘major damage’ to ‘clear and substantial’ federal interests before the Supremacy Clause will demand that state law will be overridden,”[88] However, the opinion also noted that family law was not immune from pre-emption and that the Court has recognized that “…state laws ‘governing the economic aspects of domestic relations …must give way to clearly conflicting federal enactments.’”[89]

The analysis of the pre-emption issue began with the Court ascertaining “…  the nature of the federal interest.”[90]  An important component for the United States Supreme Court in holding that Va. Code Ann. § 20-111.1(D) was preempted by FEGLIA was based on two (2) previous decisions by the United States Supreme Court in Wissner v. Wissner[91] and Ridgeway v. Ridgeway[92]which were cited above.  The similarity between NSLIA, SGLIA, and FEGLIA led the Court to conclude that Congress’ intent in implementing FEGLIA regulations was to speak “…  with force and clarity in directing that the proceeds belong to the named beneficiary and no other.”[93]  The decision held that it makes no difference whether state law requires the transfer of the proceeds, as Section A does,[94] or creates a cause of action, like Section D, that enables another person to receive the proceeds upon filing an action in state court. In either case, state law displaces the beneficiary selected by the insured in accordance with FEGLIA and places someone else in her stead.[95]

The decision noted that “Rather than draw an inference about an employee’s probable intent from a range of sources, Congress established a clear and predictable procedure for an employee to indicate who the intended beneficiary of his life insurance shall be.”[96] (Emphasis added.)  The opinion held that “If States could make alternative distributions outside the clear procedure Congress established, that would transform this narrow exception into a general license for state law to override FEGLIA.[97] (Emphasis added.) If you practice in a state that has a revocation upon divorce statute, please compare the language of your applicable statute to the language of the Virginia statute cited above to determine if there is a conflict between the revocation statute and the Hillman decision.  Since the Hillman v. Maretta decision by the United States Supreme Court, the reasoning in Hillman v. Maretta has been used to preclude a federal lawsuit in Ohio, Bussberg v. Fed. Ret. Thrift Inv. Bd., wherein the Ohio federal court found that the federal statutes governing the Thrift Savings Plan pre-empted the lawsuit filed by the deceased ex-spouse’s new wife and child.[98]

Practical Suggestions

Needless to say, the governing federal statutes, the cases decided by the United States Supreme Court, state revocation of nonprobate assets upon divorce statutes, state and federal case law have caught the attention of domestic relations, estate planning, and employment benefits attorneys, as well as the insurance industry and plan administrators of group life insurance and/or retirement plans.  Unfortunately, there is no clear answer to the question when the inevitable telephone call occurs.  However, the following are some practical suggestions that may prevent the problem of failing to change beneficiary designations after divorce from happening:

• Discuss the issue of beneficiary designations/survivorship elections with your current clients at an early stage of the representations;
• For nonprobate assets that permit changing beneficiary designations/survivorship elections prior to divorce, advise clients to change the designations unless prohibited from doing so by a court order or state statute;
• When clients change their beneficiary designations after divorce, have clients provide a copy of the beneficiary designation change for their file;
• Property settlement agreements, especially where an interest in a nonprobate asset is waived, should contain a notice that the waiver of the interest does not change any beneficiary designation.  It is the responsibility of the client to change any applicable beneficiary designation; and
• Use an appropriate closing letter when the file is completed which sets forth all of the client’s responsibilities following the entry of the final decree of divorce.  In the case of beneficiary designation changes, it could be required that copies of the forms be sent to the attorney for the file.

Global Solutions

On a larger scale, the problems associated with the failure to change beneficiary designations after divorce need to be addressed on both the state and federal level.  When a deceased ex-spouse fails to change his/her beneficiary designations/survivorship elections and the proceeds of a nonprobate asset are paid to someone else other than the living ex-spouse, there is an assumption by either a statute or a court that the deceased ex-spouse would have never intended for the proceeds to be paid to the living ex-spouse.  However, this may not have been the case; and, it is not a situation where guesswork is the answer.  There should be certainty to the answers to this problem when it occurs.  As the law currently stands, even with the pronouncements from the United States Supreme Court, an attorney arguing one of these cases has support for his/her position for whatever position he/she asserts.  Therefore, the following suggestions are made for a more global solution to the problem:

• The federal agencies which control the types of nonprobate assets that can pre-empt state law should re-examine both the statutes and regulations applicable to the effect of divorce on beneficiary designations/survivorship elections;
• State legislatures where revocation of nonprobate assets upon divorce statutes are applicable need to examine these statutes in light of the decisions by the United States Supreme Court and other case law;
• State divorce law should include provisions in their statutes regarding the manner in which beneficiary designations/survivorship elections are to be handled following divorce;
• State law applicable to certain types of nonprobate assets should be consistent across the board in the manner in which these assets are handled in divorce; and
• The National Conference of Commissioners on Uniform State Laws should once again study U.P.C. § 2-804 in light of the abolishment of federal common law in Kennedy v. DuPont Savings and Investment Plan.[99]

Until these matters are resolved, there will be uncertainty for family law and estate planning attorneys when advising their clients of the steps necessary to avoid an unintended result regarding nonprobate assets and to ensure their advice is heeded by their clients.

---

Leslie Ann Shaner is the author of Divorce in the Golden Years published by the American Bar Association. She is a frequent CLE speaker and an active member in both national and state bar associations.  She graduated from Randolph-Macon Woman’s College and Washington & Lee University School of Law.  www.qdrovirginia.net

---

Endnotes

[1] Nonprobate assets are frequently by defined by state statute, particularly in those states that have either adopted the Uniform Probate Code in whole or in part, e.g., Va. Code Ann. § 64.2-620(A) (2013) defines nonprobate assets as being an “…insurance policy, contract of employment, bond, mortgage, promissory note, certificated or uncertificated security, account agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan, trust, conveyance, deed of gift, marital property agreement, or other written instrument of a similar nature is nontestamentary.”

[2] For example, some states have enacted either in whole or in part the Uniform Nonprobate Transfers on Death Act.  Part 2 applies to multiple-party accounts and payable on death accounts; and, Part 3 is known as the Uniform Transfer on Death Security Registration Act which applies to securities and securities accounts to control the disposition of these nonprobate assets upon death.

[3] All states, whether under equitable distribution or community property law, provide for the division of financial assets in divorce.

[4] Federal Law:  For example, the Employee Income Retirement Security Act (ERISA), 29 U.S.C. §§ 1001, et seq., (2013) governs group life insurance policies and retirement plans; the Civil Service Retirement System (CSRS), 5 U.S.C. §§ 8331, et seq., (2013) governs the retirement plan for some federal employees; the Federal Employees Retirement System (FERS), 5 U.S.C. §§ 8401, et seq., (2013) governs the retirement plan for the majority of federal employees; the Thrift Savings Plan (TSP), 5 U.S.C. §§ 8431, et seq., (2013) is a defined contribution retirement plan for federal employees and the military; the Federal Employees Group Life Insurance Act (FEGLIA), 5 U.S.C. §§ 8701, et seq., (2013) provides life insurance for federal employees; the National Service Life Insurance Act (NSLIA), 38 U.S.C. §§ 1901, et seq., provides life insurance for World War II service personnel; the Servicement’s Group Life Insurance Act (SGLIA), 38 U.S.C. §§ 1965, et seq. (2013) provides life insurance for the military; and The Railroad Retirement Act of 1974, 45 U.S.C. §§ 231, et seq., (2013) governs the railroad plan and survivor benefits.

State Law:  All states and many localities provide both retirement plans and group life insurance policies for their employees.  These benefits are controlled by state statute and/or local ordinance.

[5] For privately held insurance policies, the division in divorce is of the cash value of the policy.  On the other hand, group life insurance policies are term policies that have no monetary value; therefore, group life insurance policies are generally not divisible in divorce.

For example, in Virginia, only one statute addresses the issue of beneficiary designations; and, this is to ensure the payment of child support following the death of the payor spouse. Va. Code Ann. § 20-108.1(D) (2013).  On the other hand, a Michigan statute addresses all facets of the division of nonprobate assets, including the manner in which beneficiary designations/survivorship elections are handled. Mich. Comp. Laws Ann. § 552.101(2)-(3) (2013).

[6] Alaska Stat. § 13.12.804 (2012), see also, State Farm Life Ins. Co. v. Davis, 2008 U.S. Dist. LEXIS 44003 (D. Alaska June 3, 2008), summary judgment denied, 2008 U.S. Dist. LEXIS 102217 (D. Alaska Dec. 17, 2008); Ariz. Rev. Stat. Ann. § 14-2804 (2013), see also, Matter of Estate of Dobert, 963 P.2d 327, 333-334 (Ariz.App. Div. 1 1998); Lamparella v. Lamparella, 109 P.3d 959, 967 (Ariz.App. Div. 1 2005); and U.S. Bank v. Garcia, 215 Ariz. 358, 160 P.3d 679, 2007 Ariz. App. LEXIS 111 (Ariz. LEXIS 111, review denied, 2007 Ariz. LEXIS 152 (2007); Colo. Rev. Stat. Ann. § 15-11-804 (2012), see also, In re Estate of MacAnally, 20 P.3d 1197 (Colo. App. 2000); In re Estate of DeWitt, 54 P.3d 849 (Colo. 2002); and Christensen v. Wilson, 2012 Colo. App. LEXIS 1915, 2012 COA 209 (2012), rehearing denied, 2012 Colo. App. LEXIS 1915, 2012 COA 209 (2012), writ of certiorari denied, 2013 Colo. LEXIS 457 (Colo. July 1, 2013); Haw. Rev. Stat. Ann. §§ 560:2-508 and 560:2-804 (2013); Idaho Code Ann. §§ 15-2-508 and 15-2-802 (2013); Minn. Stat. Ann. §§ 524.2-508 and 524.2-804 (2013), see also, In re Estate of Raymond, 495 N.W.2d 241, 1993 Minn. App. LEXIS 121 (Minn. Ct. App. 1993); In re Estate of Kerr, 520 N.W.2d 512, 1994 Minn. App. LEXIS 815 (Minn. Ct. App. 1994), review denied, 1994 Minn. LEXIS 837 (Minn. Oct. 14, 1994); In re Estate of Danca, 1999 Minn. App. LEXIS 392 (Minn. Ct. App. Apr. 20, 1999, review denied, 1999 Minn. LEXIS 364 (Minn. June 16, 1999); Lincoln Benefit Life Co. v. Heitz, 468 F.Supp.2d 1062 (D. Minn. 2007); Johnson v. Johnson, 2007 Minn. App. Unpub. LEXIS 846, 11 No. 35 Minn. Lawyer 28 (2007); and MONY Life Ins. Co. v. Ericson, 533 F.Supp.2d 921, 924-928 (D. Minn. 2008); Mont. Code Ann. § 72-2-814 (2012); N. M. Stat. Ann. §§ 45-2-508 and 45-2-804 (2013); N.D. Cent. Code § 30.1-10-04 (2013); S.D. Codified Laws §§ 29A-2-508 and 29A-2-804 (2013), see also, Buchholz v. Storsve, 740 N.W.2d 107 (2007); and Utah Code Ann. §§ 75-2-508 and 75-2-804 (2013); see also, Stillman v. Teachers Ins. & Annuity Ass’n College Ret. Equities Fund, 343 F.3d 1311 (10th Cir. 2003).

[7] The website for the National Conference of Commissioners on Uniform State Laws provides copies of all of the uniform laws referred to in this article.  http://www.uniformlaws.org

[8] See, e.g.,  Cal. Prob. Code §§ 5600 to 5604 (2013); Iowa Code Ann. §§ 598.20A and 598.20B (2013); Mo. Rev. Stat. § 461.051 (2013), see also, Gillespie v. Estate of McPherson, 159 S.W.3d 466, 471-473 (Mo.Ct.App. 2005); United Investors Life v. Wilson, 191 S.W.3d 76, 79-80 (Mo.Ct.App. 2006); Elliott v. St. John’s Reg’l Health Ctr., 243 S.E.3d 501, 2008 Mo.App. LEXIS 45 (Mo. Ct. App. 2008); and Scott v. Public Sch. Ret. Sys. of Mo., 764 F.Supp. 2d 1151, 2011 U.S. Dist. LEXIS 6290 (W.D. Mo. 2011); N.J. Stat. Ann. § 3B:3-14 (2013); see also, In re Will of Reilly, 201 N.J. Super. 306, 493 A.2d 32, 1985 LEXIS 1280 (App. Div. 1985); Hadfield v. Prudential Ins. Co., 408 N.J.Super. 48, 973 A.2d 387, 389-390 (App.Div. 2009), cert. denied, 2009 N.J. LEXIS 1228 (N.J., Sept. 29, 2009); and Calmon-Hess v. Harmer, 904 F.Supp.2d 388, 2012 U.S. Dist. LEXIS 147784 (D.N.J. 2012); N.Y. Est. Powers & Trusts § 5-1.4 (2013); see also, Diversified Inv. Advisors, Inc. v. Baruch, 793 F.Supp. 2d 577, 2011 U.S. Dist. LEXIS 67436, 52 Employee Benefits Cas. (BNA) 1137 (E.D.N.Y. 2011); Ohio Rev. Code Ann. §§ 5815.33 and 5815.34 (2013); see also, Lewers v. American Express Trust Co., 1997 Ohio App. LEXIS 4354 (Ohio Ct. App., Stark County Nov. 10, 1997), discretionary appeal not allowed, 81 Ohio St.3d 1458, 690 N.E.2d 550, 1998 Ohio LEXIS 708 (1998); Robinson v. Rodi, 129 Ohio App. 3d 550, 718 N.E.2d 504, 1998 Ohio App. LEXIS 4106 (Ohio Ct. App., Columbiana County 1998); Concepcion v. Concepcion, 131 Ohio App.3d 271 N.E.2d 176, 1999 Ohio  Ct. App., Seneca County 1999); Medical Life Ins. Co. v. Lamar, 2001 Ohio App. LEXIS 31 (Ohio Ct. App., Franklin County Jan. 9, 2001); Cosby v. Cosby, 96 Ohio St. 3d 228, 2002 Ohio 4170, 773 N.E.2d 516, 2002 Ohio LEXIS 1997, 28 Employee Benefits Cas. (BNA) 2655 (2002); Klan v. Klan, 2006 Ohio 1738, 2006 Ohio App. LEXIS 1598 (Ohio Ct. App., Cuyahoga County Apr. 6, 2006); Justice v. Justice, 2005 Ohio 1802, 2005 Ohio App. LEXIS 1730 (Ohio Ct. App., Butler County Apr. 18, 2005); Nationwide Life Ins. Co., v. Kalberg, 2007 Ohio 2041, 2007 Ohio App. LEXIS 1930 (Ohio Ct. App., Lrain County Apr. 30, 2007), discretionary appeal not allowed, 115 Ohio St.3d 1422, 2007 Ohio 5056, 874 N.E.2d 538, 2007 Ohio LEXIS 2439 (2007); Pa. Life Ins. Co. v. Pattison, 2007 Ohio 2703, 2007 Ohio App. LEXIS 2503 (Ohio Ct. App., Clermont County June 4, 2007); and Grzely v. Singer, 2012 Ohio 2440, 971 N.E.2d 481, 2012 Ohio App. 2151 (Ohio Ct. App., Lake County 2012); Okla. Stat. Ann. tit. 15, § 178 (2013); see also, Williams v. Old Am. Ins. Co., 1994 OK CIV APP 61, 882 P.2d 576, 1994 Okla Civ. App. LEXIS 110, 65 Okla. B.J. 3345 (Okla. Ct. App. Apr. 12 1994), remanded by, 1995 OK CIV APP 128, 907 P.2d 1105, 1995 Okla Civ. App. LEXIS 113, 66 Okla. B.J. 3787 (Okla. Ct. App. 1995) and Bruner v. Bruner, 1993 OK CIV APP 109, 864 P.2d 1289, 1993 Okla. Civ. App. LEXIS 148, 64 Okla. B.J. 3658 (Okla. Ct. App. 1993); 20 Pa. Cons. Stat. Ann. §§ 6111.1 and 6111.2 (2013), see, Wichek v. Wichek, No. 93 DR 2002 No. 572 CV 2002, 2006 Pa. Dist. & Cnty. Dec. LEXIS 544, 83 Pa. D. & C. 4th 525 (2006); and In re Sauers, 613 Pa 186, 32 A.3d 1241, 2011 Pa. LEXIS 2832, 53 Employee Benefits Cas. (BNA) 1044 (2011); and In re Estate of Hoffman, 2012 PA Super 209, 54 A.3d 903, 2012 Pa. Super. LEXIS 2529 (Pa. Super. Ct. 2012); Tex. Fam. Code §§ 9.301 and 9.302 (2013); In re Group Life Ins. Proceeds of Mallory, 872 S.W.2d 800, 1994 Tex.App. LEXIS 444 (Tex. App. Amarillo (1994); Hunt v. Jefferson-Pilot Life Ins. Co., 900 S.W.2d 453. 1995 Tex. App. LEXIS 1225, 95:23 Tex. Civil Op. Serv. 99 (Tex. App. Fort Worth 1995); Emmens v. Johnson, 923 S.W.2d 705, 1996 Tex. App. LEXIS 1357, 96:16 Tex. Civil Op. Serv. 27 (Tex. App. Houston 1^st Dist. 1996); Barber v. Grimm, 2005 U.S. Dist. 31546, 37 Employee Benefits Cas. (BNA) 1369 (N.D. Tex. Dec. 6, 2005); Camacho v. Montes, 2006 Tex.App. LEXIS 8181 (Tex.App. Amarillo Sept. 15, 2006); Gray v. Nash, 259 S.E.3d 286, 2008 Tex. App. LEXIS 4591 (Tex. App. Fort Worth 2008); and Olmstead v. Napoli, 383 S.W.3d 650, 2012 Tex. App. LEXIS 7641 (Tex. App. Houston 14^th Dist. 2012); Va. Code Ann. §  20-111.1 (2013), see also, Hillman v. Maretta, 133 S.Ct. 1943, 186 L.Ed.2d 43, 2013 U.S. LEXIS 4167, 81 U.S.L.W. 4357 (U.S. 2013); Wash. Rev. Stat. Ann. § 11.07.010 (2013); Mearns v. Scharbach, 103 Wn.App. 498, 12 P.3d 1048 (2000); Primerica Life Ins. Co. v. Madison, 114 Wn. App. 364, 57 P.3d 1174, 2002 Wash.App. LEXIS 2876 (2002); Egelhoff v. Egelhoff, 532 U.S. 141, 121 S.Ct. 1322, 149 L.Ed.2d 264, 2001 U. S. LEXIS 2458 (2001); Wis. Stat. Ann. §§ 767.375, 854.15 (2012); see, Otto v. Estate of Moen, 2000 U.S. Dist. LEXIS 22571 (W.D. Wis. Nov. 29, 2000) and Dahm v. City of Milwaukee, 288 Wis.2d 637, 707 N.W.2d 922 (2005)

[9] U.P.C. § 2-804(h)(2).

[10] 2011 U.S. Dist. LEXIS 35676 (D.N.J. Mar. 31, 2011).

[11] Id. At 14-15.

[12] 613 Pa 186, 32 A.3d 1241, 2011 Pa. LEXIS 2832, 53 Employee Benefits Cas. (BNA) 1044 (2011).

[13] Id. at 1257.

[14] 338 U.S. 655, 660-661, 70 S.Ct. 398, 94 L.Ed.2d 424 (1950).

[15] 454 U.S. 46, 102 S.Ct. 49, 51-53, 70 L.Ed.2d 39 (1981).

[16] 532 U.S. 141, 121 S.Ct. 1322, 149 L.Ed.2d 264 (2001).

[17] 555 U.S. 285, 129 S.Ct. 865, 172 L.Ed.2d 662 (2009).

[18] 133 S.Ct. 1943, 186 L.Ed.2d 43, 2013 U.S. LEXIS 4167 (U.S. 2013).

[19] 532 U.S. 141, 121 S.Ct. 1322, 149 L.Ed.2d 264 (2001).

[20] Id. at 144.  Wash. Rev. Code § 11.07.010(2)(a) provided that “If a marriage is dissolved or invalidated, a provision made prior to that event that relates to the payment or transfer of the decedent’s interest in a nonprobate asset in favor of or granting an interest or power to the decedent’s former spouse is revoked.  A provision affected by this section must be interpreted, and the nonprobate asset affected passes as if the former spouse failed to survive the decedent, having died at the time of entry of the decree of dissolution or declaration of invalidity.”

[21] Id. at 151-152.

[22] Id. at 150.

[23] Id. at 146-147.

[24] Id.

[25] IBEW Local 613 Defined Contribution Pension Fund v. Moore, No. No. 1:04-CV-3738-WT, 2005 U.S.Dist. LEXIS 42034, *15-16 (N.D.Ga. Oct. 12, 2005).

[26] See, e.g.,

Federal:  John Hancock Mut. Life Ins. Co. v. Timbo, 67 F.Supp.2d 413, (D.N.J. 1999);

Metro. Life Ins. Co. v. Flinkstrom, 303 F.Supp.2d 34, 40-42 (D. Mass. 2004); Barber v. Grimm, No. 4:05-CV-573-4, 2005 U.S.Dist. 31546, *4-5 (N.D. Tex. 2005); The Guardian Life Insurance Company of America v. Finch, 395 F.3d 238, 243 (5th Cir. 2004); Forcier v. Metro. Life Ins. Co., 469 F.3d 178, 186 (1st Cir. 2006);  and Metro. Life Ins. Co. v. Flusty, No. 07-12560, 2008 U.S. Dist. LEXIS 551, *8-9 (E.D. Mich. Jan. 3, 2008).

State Cases:   Macinnes v. Macinnes, 260 Mich.App. 280, 677 N.W.2d 889, 892-894 (2004);

Moore v. Moore, 266 Mich.App. 96, 700 N.W.2d 414, 416-418 (2005); and Sweebe v. Sweebe, 474 Mich. 151, 712 N.W.2d 708, 712-714 (2008)

[27] See, e.g.,

State Cases:  Pinkard v. Confederate Life Ins. Co., 264 Neb. 312, 647 N.W.2d 85, 88-90 (2002) and Strong v. Omaha Constr. Indus, Pension Plan, 270 Neb. 1, 701 N.W.2d 320, 328-330 (2005).

[28] See, e.g.,

Federal:  O’Neil v. O’Neil, 136 F.Supp.2d 690, 694-695 (E.D. Mich. 2001); Melton v. Melton, 324 F.3d 941, 945-946 (7th Cir. 2003); and Minn. Life Ins. Co. v. Hamilton,  2008 U.S.Dist. LEXIS 26514, *17-18 (S.D.Ill Apr. 2, 2008).

State Cases:  Smith v. Smith, 919 So.2d 525, 528 (Fla.App. 5 Dist. 2005).

[29] See, e.g. Sweebe v. Sweebe, 474 Mich. 151, 712 N.W.2d 708, 714 (2008).

[30] 555 U.S. 285, 129 S.Ct. 865, 172 L.Ed.2d 662 (2009).

[31] Id. at 870.

[32] Id. at 869.

[33] Id. at 869.

[34] Id. at 877.

[35] Id. at 873.  Under 29 § 1056(d)(3)(B)(i) (2013), a QDRO is used for the  “…creation or recognition of the existence of an alternate payee’s right to, or assignment to an alternate payee of the right to, receive all or a portion of the benefits payable with respect to a participant under a plan.”

[36] Id.

[37] 532 U.S. 141, 121 S.Ct. 1322, 149 L.Ed.2d 264 (2001).

[38] 555 U.S. 285, 129 S.Ct. 865, 876, 172 L.Ed.2d 662, 676 (2009).

[39] Id.

[40] Id. at 875.

[41] Strickland v. Strickland, 2013 U.S. Dist. LEXIS 25353, *14-15 (Feb. 25, 2013).

[42] Jagar v. Jagar, 2009 U.S. Dist. LEXIS 109131, *8, 48 Employee Benefits Cas. (BNA) 1273 (N.D. Cal. Nov. 23, 2009, findings of fact and conclusions of law at 2010 U.S. Dist. LEXIS 33151 (N.D. Cal. Mar. 10, 2010).

[43] Vanderkam v. Pension Benefit Guar. Corp., 2013 U.S. Dist. LEXIS 64838, *55-57,  (D.D.C. May 7, 2013).

[44] Unicare Life & Health Ins. Co. v. Hedinger, 2009 U.S. Dist. LEXIS 55912, *11 (W.D. Ky. June 29, 2009).

[45] Staelens v. Staelens, 677 F.Supp.2d 499, 511, 2010 U.S. Dist. LEXIS 2199, 48 Employee Benefits Cas. (BNA) 2504 (D. Mass. 2010); Langevin v. McMorrow, 2011 Mass.App. Unpub LEXIS 810, *3-4, reported at 79 Mass.App.Ct. 1126, 948 N.E.2d 919, 2011 Mass.App. LEXIS 939 (2011).

[46] Trs. of the Operating Eng’rs Local 324 Pension Fund v. David, 2009 U.S. Dist. LEXIS 8393, *7-8, 46 Employee Benefits Cas. (BNA) 1947 (W.D. Mich. Feb. 5, 2009); Mack v. Mack, 2009 U.S. Dist. LEXIS 28893, *10, 46 Employee Benefits Cas. (BNA) 2218 (E.D. Mich. Apr. 1, 2009); and Estate of McCalip v. Metro. Life Ins. Co., 2009 U.S. Dist. LEXIS 55521, *13-14 (E. D. Mich. June 30, 2009), motion granted, 2009 U.S. Dist. LEXIS 55521 (E.D. Mich. June 20, 2009).

[47] Minn. Life Ins. Co. v. Richter, 2013 U.S. Dist. LEXIS 50479, *17-18 (D. Minn. Apr. 8, 2013).

[48] Metro. Life Ins. Co v. McCray, 2013 U.S. Dist. LEXIS 13892, *11-12, 55 Employee Benefits Cas. (BNA) 2545 (E.D. Mo. Feb. 1, 2013).

[49] Matschiner v. Hartfort Life & Accident Ins. Co., 622 F.3d 885, 49 Employee Benefits Cas. (BNA) 2723 (8^th Cir. Neb. 2010, rehearing denied, 2010 U.S. App. LEXIS 27641 (8^th Cir. Neb. Nov. 19, 2010), vacated by 2011 U.S. Dist. LEXIS 3541 (D. Neb. Jan. 13, 2011) on other grounds.

[50] Carmona v. Carmona, 544 F.3d 988, 1000 (9^th Cir. Nev. 2008), amended 603 F.3d 1041 (2010), cert. denied 2011 U.S. LEXIS 1346, 79 U.S.L.W. 3476 (U.S. Feb. 22, 2011).

[51] Metro. Life Ins. Co. v. Hanson, 2009 DNH, 2009 U.S. Dist. LEXIS  92044, *9, 47 Employee Benefits Cas. (BNA) 2652 (D.N.H. 2009).

[52] McGowan v. NJR Serv, Corp., 423 F.3d 241, 2005 U.S. App. LEXIS 19710, 35 Employee Benefits Cas. (BNA) 2153, writ of certiorari filed, 547 U.S. 1917, 126 S.Ct. 16-7, 164 L.Ed.2d 297, 2006 U.S. LEXIS 2235 (2006), writ of certiorari denied, 549 U.S. 1174, 127 S.Ct. 118, 166 L.Ed.2d 906, 2007 U.S. Lexis 1136, 75 U.S.L.W. 3368 (2007) [Please note that Shepard’s indicates that this case was overruled in part by Kennedy v. DuPont, 555 U.S. 285, 129 S.Ct. 865, 172 L.Ed.2d 662 (2009)] and Juno v. Verizon Communs., Inc., 2011 U.S. Dist. LEXIS, 35676, *14-15, 51 Employee Benefits Cas. (BNA) 1787 (D.N.J. Mar. 31, 2011).

[53] Hess v. Wojcik-Hess, 86 A.D.3d 805, 928 N.E.2d 103, 105-106, 2012 N.Y. LEXIS 5853, 2011 NY Slip Op 6006 (N.Y. App. Div. 3d Dep’t 2011), leave to appeal denied, 18 N.Y.3d 805, 963 N.E.2d 791, 2012 N.Y. LEXIS 141, 940 N.Y.S.3d 214, 2012 Slip Op 63624 (2012).  Zangara v. Int’l Painters & Allied Trades Indus. Pension Fund, 428 Fed.Appx. 54, 55-56, 2011 U.S. App. LEXIS 13134 (2011).

[54] Crites v. Anthem Life Ins. Co., 2013 Ohio 2145, *5-6, 2013 Ohio App. LEXIS 2059 (Ohio Ct. App., Defiance County, May 29, 2013).

[55] Boyd v. Metro. Life Ins. Co., 636 F/3d 138, 2011 U.S. App. LEXIS 6605, 50 Employee Benefits Cas. (BNA) 2317 (4^th Cir. S.C. 2011); see also, Companion Life Ins. Co. v. Hopson, 2012 U.S. Dist. LEXIS 19478 (D.S.C. January 23, 2012), aff’d 2012 U.S. Dist. LEXIS 19480 19480 (D.S.C. Feb. 16, 2012).

[56] McCord v. McCord, 2009 U.S. Dist. LEXIS 74012, *4-5 (M.D. Tenn. Aug. 20, 2009).

[57] Std. Ins. Co. v. Cooper-Pipkins, 2009 U.S. Dist. LEXIS 131115 (N.D. Tex. Nov. 24, 2008).

[58] Metro. Life Ins. Co. v. Leich-Brannan, 812 F.Supp.2d 729, 2011 U.S. Dist. LEXIS 83725 (E.D. Va. 2011).

[59] Metro. Life Ins. Co. v. Gulino, 2009 U.S. Dist. LEXIS 50901, *12, 47 Employee Benefits Cas. (BNA) 1236 (W.D. Wash. Jun 4, 2009); Metro. Life Ins. Co. v. Cline, 388 Fed.Appx. 690, 692-693, 2010 U.S.App. LEXIS 14911 (9^th Cir. Wash. 2010); Becker v. Mays-Williams, 2012 U.S. Dist. LEXIS 175561, *2-3, 55 Employee Benefits Cas. (BNA) 2120 (W.D. Wash. Dec. 10, 2012), reconsideration denied 2013 U.S. Dist. 8618 (Jan. 22, 2013).

[60] Reliastar Life Ins. Co. v. Keddell, 2011 U.S. Dist. LEXIS 3164, *4 (E.D. Wis. Jan. 11, 2011).

[61] 555 U.S. 285, 129 S.Ct. 865, 875, 172 L.Ed.2d 662 (2009).

[62] Hohu v. Hatch, 2013 U.S. Dist. LEXIS, *33-34, 54040 (N.D. Cal. Apr. 16, 2013).

[63] Appleton v. Alcorn, 291 Ga. 107, 728 S.E.2d 549, 552, 2012 Ga. LEXIS 486, 2012 Fulton County D. Rep. 1761 (2012).

[64] Schumacher v. Principal Life Ins. Co., 665 F.Supp.2d 970, 980 (N.D. Ind. 2009).

[65] Morris v. Metro. Life Ins. Co., 751 F.Supp.2d 955, 961, 2010 U.S. Dist. LEXIS 121589, 50 Employee Benefits Cas. (BNA) 1421 (E.D. Mich. 2010); Terry v. Metro. Life Ins. Co., 2010 U.S. Dist. LEXIS 121589, *16, 50 Employee Benefits Cas. (BNA) 1421 (E.D. Mich. Nov. 17, 2010); Brown v. Wright, 2009 Mich. App. LEXIS 1877, *3-4 (Mich.Ct.App. Sept 15, 2009), leave to appeal denied, 486 Mich. 996, 783 N.W.2d 110, cert. denied, 131 S.Ct. 654, 178 L.Ed.2d 481 (U.S. 2010); Union Sec. Ins. Co. v. Alexander, 2011 U.S. Dist. LEXIS 126630, *24, 52 Employee Benefits Cas. (BNA) 2447 (E.D. Mich. Nov. 2, 2011);

[66] Estate of Kensinger v. URL Pharma, Inc., 674 F.3d 131, 137, 2012 U.S. App. LEXIS 5741, 52 Employee Benefits Cas. (BNA) 2514 (3^rd Cir.. N.J. 2012).

[67] Linder v. Delles, 885 F. Supp. 557, 561, 2012 U.S. Dist. LEXIS 110750 (N.D.N.Y. 2012)

[68] Estate of Hall v. Hall, 2009 U.S. Dist. LEXIS 79027, *6-8 (E.D. Pa. Sept. 3, 2009).

[69] Flesner v. Flesner, 845 F.Supp.2d 791, 802, 2012 U.S. Dist. LEXIS 4615, 52 Employee Benefits Cas. (BNA) 2714 (S.D. Tex. 2012) and Smalley v. Smalley, 399 S.W.3d, 640, 2013 Tex. App. LEXIS 4038 (Tex. App. Houston 14^th Dist. 2013).

[70] Androchick, v. Byrd, 709 F.3d 296, 301, 2013 U.S. App. LEXIS 4573 (2013), writ of certiorari denied, 2013 U.S. LEXIS 7046 (U.S. Oct. 7, 2013).

[71] Partlow v. Person, 798 F.Supp.2d 878, 885, 2011 U.S. Dit. LEXIS 79216 (E.D. Mich. 2011) and Estate of Reed v. Reed, 293 Mich.App. 168, 810 N.W.2d 284, *13-14, 2011 Mich.App. LEXIS 1115 (2011), leave to appeal denied, 490 Mich. 912, 805 N.W.2d 199, 2011 Mich. LEXIS 2034 (2011).

[72] Metro. Life Ins. Co. v. Cline, 388 Fed.Appx. 690, 2010 U.S.App. LEXIS 14911, *6 (9^th Cir. Wash. 2010).

[73] Prudential Ins. Co. of Am. v. Giacobbe, 2009 U.S. Dist. LEXIS 101202, *25-26, 48 Employee Benefits Cas. (BNA) 2016 (D.N.J. Oct. 29, 2009).

[74] Principal Life Ins. Co. v. Smith, 385 Fed.Appx. 878, 2010 U.S.App. LEXIS 13636, *5-6, 49 Employee Benefits Cas. (BNA) 1758 (11^th Cir.Ala. 2010).

[75] Unun Life Ins. Co. of Am. v. Scott, 2012 U.S. Dist. LEXIS 8869, 17 (D. Conn. Jan. 24, 2012).

[76] Metro. Life Ins. Co. v. McLean, 2010 U.S. Dist. LEXIS 42421, *15, 48 Employee Benefits Cas. (BNA) 2933 (E.D. Mich. Apr. 30, 2010).

[77] Teachers Ins. & Annuity Ass’n of Am. v. Bernardo, 683 F.Supp.2d 344, 355, 2010 U.S. Dist. LEXIS 5909, 48 Employe Benefits Cas. (BNA) 1981 (E.D. Pa. 2010).

[78] Bayer v. Fluor Corp., 2010 U.S. Dist. LEXIS 69568, *20-21, 49 Employee Benefits Cas. (BNA) 1865 (E.D. Pa. July 12, 2010).

[79] See, e.g., Robinette v. Hunsecker, 212 Md.App. 76, 125-126, 66 A.3d 1093, 2013 Md.App. LEXIS 64 (2013); Hardy v. Hardy, 963 N.E.2d 470, 475-476, 2012 Ind. LEXIS 28 (Ind. 2012); and Principal Life Ins. Co. v. DeVita, 2009 U.S. Dist. LEXIS 104273, *5-6  (W.D. Wash. Nov. 5, 2009).

[80] Life Ins. Co. of N. Am. V. Justak, 2008 U.S. Dist. LEXIS 30270 (N.D. Inc. Mar. 31, 2008).

[81] Union Cent. Life Ins. Co. v. Berger, 2012 U.S. Dist. LEXIS 135102 (S.D.N.Y. Sept. 19, 2012).

[82] 133 S.Ct. 1943, 186 L.Ed.2d 43, 2013 U.S. LEXIS 4167 (U.S. 2013).

[83] Id. at 1947.

[84] Id.

[85] See, 5 U.S.C. § 8709(d)(1) which provides “…[t]he provisions of any contract under [FEGLIA] which relate to the nature or extent of coverage or benefits (including payments with respect to benefits) shall supersede and preempt any law of any State …, which relates to group life insurance to the extent that the law or regulation is inconsistent with the contractual provisions.” (Emphasis added.)

[86] Hillman v. Maretta, 133 S.Ct. 1943, 1950, 186 L.Ed.2d 43, 2013 U.S. LEXIS 4167 (U.S. 2013).

[87] Id.

[88] Id.

[89] Id.

[90] Id.

[91] 338 U.S. 655, 660-661, 70 S.Ct. 398, 94 L.Ed.2d 424 (1950).

[92] 454 U.S. 46, 102 S.Ct. 49, 51-53, 70 L.Ed.2d 39 (1981).

[93] Hillman v. Maretta, 133 S.Ct. 1943, 1951, 186 L.Ed.2d 43, 2013 U.S. LEXIS 4167 (U.S. 2013).

[94] Va. Code Ann. § 20-111.1(A) (2013).  It should also be noted that in the Virginia Supreme Court that both parties acknowledged and agreed that Va. Code Ann. § 20-111.1(A) was preempted by FEGLIA. See, Hillman v. Maretta, 283 Va. 34, 35, 722 S.E.2d 32 (2012).  This acknowledgement was also noted in the SCOTUS opinion.

[95] Hillman v. Maretta, 133 S.Ct. 1943, 1952, 186 L.Ed.2d 43, 2013 U.S. LEXIS 4167 (U.S. 2013).

[96] Id. at 1952-1953.

[97] Id.at 1953.

[98] 2013 U. S. Dist. LEXIS 104202, *6-7 (S.D. Ohio July 26, 2013); see also, Bumler v. Armed Forces Benefit Ass’n., 2013 U.S. Dist. LEXIS 98208, *5-6 (E.D. Mo. July 15, 2013).

[99] 555 U.S. 285, 129 S.Ct. 865, 172 L.Ed.2d 662 (2009).

Published on: December 10, 2013