can I despute the benificiary status for the 401k, and the esap against my stepmother

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can I despute the benificiary status for the 401k, and the esap against my stepmother

My father had worked for a company for over 35 years. My biological mother passed away and he remarried. My father and his new wife had only been married for less than 14 years before he passed away. My sister and my self were originally the sole beneficiary at his employment for life, 401k, and esap. Until he married then she became the sole beneficiary. With my sister and myself listed if anything were to happed to her. when my father passed away she sought the opportunity to banquish my sister and my self from her life. I don’t feel she should be entitled to the whole 35 years

Asked on April 13, 2009 under Estate Planning, Minnesota


FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 14 years ago | Contributor

Sorry, but I think you are almost certainly out of luck.

Under a Federal law called ERISA the surviving spouse is the automatic beneficiary of a pension or 401(k) plan (but not an IRA). I do not the terms of the ESOP or the legal rules governing the ESOP.

Most private pension plans specifically limit the receipt of retirement benefits to either the lifetime of the pensioner alone (a single life pension), or pay out an actuarial equivalent but significantly smaller monthly benefit so long as the pensioner or his or her spouse are alive (a joint and survivor pension), perhaps with a few wrinkles so that they pay an even smaller benefit for the lifetime of the survivor at the death of the first to die. So the odds are you were never in line for the pension anyway.

While unmarried 401(k) plan owners can name any person they select as the beneficiary of their 401(k), for a married person to name anyone other than the spouse typically requires a notarized consent by the spouse to a waiver of his or her rights. (There may be exceptions where there is a court order naming someone else as beneficiary.)

Here it seems as if your father voluntarily named his spouse as beneficiary if she survives him. So even if there was no law his voluntary action would have made her beneficiary and it could be set aside only if he lacked "testamentary capacity" (mental competence) or acted under duress or undue influence at the time he made the designation, or there was fraud, and being married to the beneficiary rarely qualifies.

Finally you lose on the sympathy issue -- that he had "only been married for 14 years" is a lot different from being married a few days or weeks. That's considered a long term marriage, and anyway it was his money to do with as he chose. While many parents might want to do something for their children in a second marriage situation, it's harder with a 401(k) so hopefully he did something for you with his other assets.

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