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How is it possible that my ex-spouse ended up with my retirement after all?

How is it possible that my ex-spouse ended up with my retirement after all?

Often times in a divorce one of the primary concerns is the division of assets. Based on a 2011 Florida Supreme Court case, it is possible, and some may argue likely, that you could receive your retirement under the terms of your divorce decree, but upon your death your ex-spouse would still receive the death benefits as beneficiary.

As an example, Mr. and Ms. Jones are married for 25 years and Mr. Jones has acquired a substantial retirement in a 401k. During the marriage, Mr. Jones designates Ms. Jones as his beneficiary of the 401k. Mr. and Ms. Jones divorce and Mr. Jones receives his 401k as part of the divorce. The divorce decree states something along the lines of "Mr. Jones shall receive his 401k free from any claim of Ms. Jones." At the time of his death, Mr. Jones has not changed the pre-divorce beneficiary designation and Ms. Jones inherits the 401k.

Now some may have serious doubts that Mr. Jones intended for Ms. Jones to inherit his 401k. Others may argue that Ms. Jones waived any right she had to Mr. Jones' 401k by the terms of the divorce decree. However, the Supreme Court ruling states that "a reference to a beneficiary-designated policy, plan, or account in a settlement agreement, without clear reference to who should receive the death benefits upon the death of the owner, does not trump the specific and plain language of the beneficiary designation." This rule applies even when the beneficiary designation was made during the marriage and the parties subsequently divorce.

So if when you get a divorce, you don't intend for your ex-spouse to inherit your assets, you must make sure all accounts include a beneficiary designation in the settlement agreement (someone other than the soon to be ex spouse) or remember to change the beneficiary designation on all accounts at the time of divorce. The need for competent legal counsel is particularly apparent in examples like this one otherwise, your divorce could be the gift that keeps on giving.

Contact the Law Offices of Stephen K. Miller for a free consultation with one of our attorneys at (866) 496-8752 via email at Info@ForYourLaw.com.

BY: Stephanie N. Mack, Board Certified Attorney in Marital & Family Law

May 9, 2012


 
 
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