We have been together for 37 years and we have been living together for the last 28 years. He is still married to someone else , but he wants to leave his retirement and social security benefits to me . we also a have child together. What can be done legally so there won't be any issues should he pass before me .
There is nothing he can do to leave you the SS benefits as you have to be married to obtain them. If your child is young enough then he or she may qualify for those benefits
As for the pension benefits, that is even a more difficult problem since he is still married. The law protects the spouse to the benefits if it is a regular pension plan. If it is a 401k, he should be able to designate you as beneficiary, but he needs to discuss this with HR at work. Good luck.
If he really wanted to protect you with his retirement plan, he needs to have planned for this decades ago. You have no rights to his social security unless you are married to him for ten years and you both meet a series of other conditions. So that is likely not possible now. As for his retirement, if he dies, his beneficiaries take all. The law presumes that the spouse, then the children, are the natural beneficiaries. His plan may have rules restricting who he can name as a beneficiary. If he gets divorced now, the wife will likely take an equitable share of his retirement benefits in a divorce Order, which would reduce what he could leave to you (but he could still leave something to you under the Plan if allowed). Have you seen an estate planning lawyer? Good luck.
This answer is for general information purposes, and is not legal advice. Please understand that by answering this question, I am not creating an attorney client relationship with you. If we agree in writing, then I would begin to represent you.
I agree with the other attorneys. You are not in a good place regarding his SS and pension, unless the pension's rules allow you to inherit some of it. Your son, however, could be in a better place regarding both.
Another issue is that, even if he tries to leave you something in his will -- and it would have to be his separate property, not joint property with his wife -- his spouse could elect to take a portion of what's in his will. If he files for divorce, you'd have a better shot at his separate property. You might have better luck with being beneficiary of a life insurance policy, IRA, or 401k. Please talk to an estate planning attorney who could look at everything and figure this out for you.
Please note that the above answer is not to be construed as legal advice, nor do you and I have an attorney-client relationship based on this answer. It is my personal opinion based on your question, and it was given without obtaining the detailed information that I would normally request in order to render comprehensive legal advice. I advise you to consult with a local attorney of your choosing to obtain individual legal advice.
As everyone else has said, you are not getting social security benefits if you are not married at the time of his death. If his retirement is in an employer's plan, a Federal law known as ERISA trumps state law and gives it to the wife. This is true if the wife is on there and they get divorced but he neglects to change the beneficiary designation and you never marry, so be careful about that. If the retirement is in an employer's plan (like a 401(k)) he could roll it out into an IRA and then name you as a beneficiary because ERISA only covers employer plans. The wife could attempt an election against the Will, however, there are provisions regarding abandonment. If he wants to provide for you, you definitely need to see an estate planning attorney and you probably also need to see a family law practitioner. The only guarantee on these two assets you will ever have is if he gets divorced and you two marry because even if he gets divorced, if you don't get married, you are not entitled to his social security.
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Sometimes it is really important to get a divorce so that your (current) family gets the benefits that are intended.
With your significant other has been separated for 28 to 37 years, there may not be any marital property to divide. His wife would only be entitled to a share of the marital property and not the property acquired after separation (unless marital funds were used. So a retirement account that accrued after separation is not marital property and the wife would not get that in a divorce. However if he is still married to the wife at the time of his death she will most likely receive all of the retirement assets that are subject to ERISA.
With respect to social security, you will not get those unless you are married at the time of his death and have been married to him for nine months. If you were to marry and then divorce you would have had to be married for ten years to collect on his social security.
There are ways to get divorce without having to know where the wife is. He should consult with an experienced family law attorney and get divorced to provide for you after his death.
This answer is for informational purposes only and does not establish an attorney/client relationship.
He can't leave his SS benefits to you. Period. As to his retirement, his wife would get his equitable share of the retirement and she would have a right to secure that. He could only possibly leave you a death benefit designation if indeed the retirement plan has such a provision.
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