Q. I was married for 28 years and my husband just died. He was married before me to his first wife, and they had one child. His first wife died five years ago. My husband had an old 401(k) plan, and an insurance policy with that old job, but his first wife was still the one named on those accounts as the beneficiary. Now that she’s also gone, who gets that money? Me or his child from that marriage?
A. We’re sorry to hear about your husband.
The answer to your question may be found in the property settlement agreement, or PSA, from your husband’s first marriage.
If you can’t find this with your husband’s paperwork, you should try to see if you can reach out to his divorce attorney, said Nancy Heslin Reading, an estate planning attorney with Reading Law Firm in Newton.
Of course, given that the divorce was more than 28 years ago, that may be a challenge. We’ll get to that in a moment.
If you do find the document, you’ll need to look for specific wording.
“She will want to look for language that requires her husband to designate his ex-wife as the beneficiary of any of his death benefits,” she said. “If the PSA cannot be located, she may be able to locate a copy of the QDRO – or Qualified Domestic Relations Order – which spells out in hard numbers exactly what the parties must pay to one another after the divorce goes through.”
Again, you’d look for language that requires your husband to designate his ex-wife as the beneficiary of any asset that passes upon his death, usually for the benefit ultimately of a minor child.
If those documents do not address the 401(k) and life insurance which still name the former wife as beneficiary in the present instance, then the default statute can be found in the probate code, Reading said.
“NJSA 3B:3-14 revokes by operation of law a payable on death beneficiary designation of an ex-spouse; however, this statute only controls if there is no `governing instrument’ that addresses the assets,” she said. “A `governing instrument’ could be the property settlement agreement or the QDRO, and if one exists that would control.”
If you have no idea where to start looking for divorce documents from so long ago, Reading has some suggestions.
Assuming you will be serving as the executor or administrator of your husband’s estate, as part of the probate process, you will have to give all heirs notice that your husband’s estate has been probated, and that will include the child from the first marriage, Reading said.
So while you will have a fiduciary duty to honestly and expeditiously settle your husband’s estate — which includes making sure that the life insurance and 401(k) — Reading said it is the child from the first marriage who will be motivated to produce any “governing instrument” that proves he or she is entitled to a death benefit.
“The executor/administrator should give the child notice that the assets exist and name his/her mother, and any alternate beneficiary who is named, but it is arguably incumbent on the child to produce a `governing instrument’ that supersedes the default language in the probate code,” Reading said.
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