James P. Frederick
James P. Frederick, Probate Attorney - Livonia, MI
Posted almost 2 years ago.

That is a great point, regarding the jurisdiction issue! I would have the cases in both jurisdictions reviewed to determine which one is more favorable to you. I would fight hard to get the case heard, there.

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Asker
Posted almost 2 years ago.

Thank you very much! Mo has statute 461.051 which revokes ex spouses beneficiary rights, but ERISA superceeds. My divorce was in KS and decree and Prop Sett Agree written in KS which has no such statute. Also, decree states "this agreement shall be interpreted under the laws of the State of Kansas". Exwife had knowledge for 10 years that I was listed as the beneficiary and did not change it. Ex wife had dissipated marital assets during the marriage which leads to her intent to leave me as beneficiary.
Estate is relying on the Kensinger case, which seems to only find that the Estate could sue the exwife under for recovery of the retirement acct proceeds a a contract issue based on enforcing her waiver in the Prop Sett Agree.

James P. Frederick
James P. Frederick, Probate Attorney - Livonia, MI
Posted almost 2 years ago.

I am amazed at the number of different cases involving this exact issue. We have had three cases involving similar facts during the past year, and I have had calls on several more cases. There seem to be two general approaches which are diametrically opposed. Since this is very state specific, you need to focus on the law of the state in question, which in your case, appears to be Kansas. ERISA provides that the benefits must be paid to the named beneficiary, unless there is a QDRO. State law then determines whether the waiver in the divorce applies. In our one case, we had intervening claims from the divorce that the ex-spouse had not paid, so we had reasons for the court not to enforce a waiver. I am not familiar with the Kensinger case or with Kansas law, in general. But I would imagine that you will find a great number of cases on this. It sounds like you probably have an attorney, but if you do not, I would highly recommend that you get one. It will cost something, (unless you can get the court to order the estate to pay), but it should help improve your chances of prevailing. Best of luck to you!

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Asker
Posted almost 2 years ago.

Thank you! Kensigner was a NJ case that the US Court of Appeals, Third Circuit, ruled on this year, March 2012. It states "The question before us, which is one of first impression in this circuit, is this: after the plan administrator distributes the funds to Adele, can the Estate attempt to recover the funds by bringing suit directly against Adele to enforce her waiver?" It finds that "If, after distribution, her (exwife's) right to these funds is challenged because of her common law waiver, that challenge will be litigated as an ordinary contract dispute. " The Kensinger case finds that the Estate can sue the exwife after the plan distributes the 401k proceeds to her, but does not go further to decide if the "waiver" should be upheld. This would seem to bring in the jurisdictional issue in my case because the divorce decree and Prop Sett Agree were written in Kansas, not Mo, and must be interpreted by KS law. If this becomes a "contract" case, then how can a Mo Probate Court make a finding of interpreting a Kansas agreement?

James P. Frederick
James P. Frederick, Probate Attorney - Livonia, MI
Posted almost 2 years ago.

They would be required to follow Kansas law. The clerks would research it and let the judge know. It happens a fair amount of the time. Kensinger did not real DO anything, it sounds like. The Kennedy Case, several years ago said the same thing. I did a LOT of research on this issue, several months ago, when we had our 6th Circuit case. I did not look at Kansas cases, though. Your lawyer should be able to give you a good read on this. There are bound to be LOTS of recent cases. This issue is litigated a LOT. Let me know what you find out! Good luck!

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Asker
Posted almost 2 years ago.

Thank you so much. Appreciate your time and comments.

Eliz C A Johnson
Eliz C A Johnson, Estate Planning Attorney - Danville, CA
Posted almost 2 years ago.

Mr. Frederick, you are awesome.

James P. Frederick
James P. Frederick, Probate Attorney - Livonia, MI
Posted almost 2 years ago.

Thank you for the kind words Eliz! That is very sweet to say! And to asker, I wish you the best of luck with this!

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Asker
Posted about 1 year ago.

Is there any law that states the Estate should pay for attorney's fees when the Estate contests a beneficiary?

James P. Frederick
James P. Frederick, Probate Attorney - Livonia, MI
Posted about 1 year ago.

That is a really tough question and one best suited for a CA lawyer, such as Ms. Johnson. Ordinary attorney fees are the responsibility of the estate. Arguably, if it is potentially for the benefit of the estate, the estate should cover the expense. Please let us know how this turns out.