21 Jun Who will get my boyfriend’s property if he dies? Me or his wife?

Q. My boyfriend and I have lived together for 13 years but he is still officially married to another woman. He has a life insurance policy and I’m the beneficiary, and I’m also the beneficiary of his 401(k). Do we need a will and do I have to worry about his wife getting the money?
— Concerned

A. The answer to both of your questions is yes.

Even though you are the named beneficiary of the life insurance and the 401(k), there’s more you need to think about.

Without a will, probate assets — which are assets held by individuals in their own name without a beneficiary designation or assets held in joint names as tenants in common — pass by the laws of intestacy, said Catherine Romania, an estate planning attorney with Witman Stadtmauer in Florham Park.

The laws of intestacy provide first to a spouse and/or children of the decedent without regard to whether the couple are living together, she said. In the absence of a spouse or children, intestacy laws provide that property passes to parents then siblings, she said.

With respect to the life insurance and 401(k), it is possible that a spouse may have a contractual claim on such assets either through a premarital agreement or a property settlement agreement, Romania said. So, even if the assets are paid out to you, the contractual claim may provide the spouse with a successful action against you.

“In addition, some companies require retirement benefits to be paid to an employee’s spouse and, if paid to an individual other than the employee’s spouse, require the spouse to waive rights to the 401(k) before allowing a change of beneficiary, therefore, a beneficiary designation naming a non-spousal beneficiary without spousal waiver may not even be valid,” Romania said. “Finally, the spouse may have rights to the policy or part of the 401(k) as a result of the marriage in a future divorce proceeding.”

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This story was originally published on June 21, 2021.

NJMoneyHelp.com presents certain general financial planning principles and advice, but should never be viewed as a substitute for obtaining advice from a personal professional advisor who understands your unique individual circumstances.