Q: Policy holdivorcedd in Hawaii, resided in CA. Changed his beneficiary of Life Ins. We have counter claims

A: The question is a bit fragmented. My reorganization of the facts may be wrong, but I will try.

Husband ("H") and Wife ("W") got a divorce in Hawaii. H moved to California. H changed the beneficiaries on his life insurance policy. Then H died. W survived and believes she has a right to the life insurance policy.

The missing document is the divorce decree or divorce judgment or whatever it might be called. If H was paying W spousal support, it's possible for a court to order the spousal support (alimony) to be covered by life insurance. One won't know without looking at the court papers.

For that, you order the court papers from the county court. Then you look.

Now, life insurance carriers are a strong lobbying group. Banks are too. The effect of all that influence is that the laws associated with paying out beneficiaries are written in favor of the banks and life insurance companies. Basically, these companies don't have to care about some judgment sitting in a county courthouse basement in Maui County. If there is a beneficiary form on file for the life insurance, the company can pay out according to the beneficiary statement. No foul if this is wrong.

California has seen attorneys that don't understand ERISA and the institution-favored laws, and the attorneys, representing people like Wife, sue the insurance companies and banks in order to try to uphold the judgment made in a state divorce case. They fail. Once that money is paid out to the beneficiaries, Wife's attorneys are barking up the wrong tree for the money.

The right tree, if the divorce paperwork says that monies are to go to Wife, is to sue the Estate of H and the beneficiaries and attempt to claw back the money. The theory of that lawsuit is call Constructive Trust. Mind you, this is all because of the need of the financial institutions to have a low-risk world for paying out beneficiaries upon a minor investigation that basically is the certificate of death.

I've been on both sides of this one. So far, the attorney on the other side has been clueless as to the rules. The rules make logical sense when you follow the money--by that I mean the billions. The rules are written so that the folks with the billions don't have legal problems with hidden state court divorce cases. Some of these things are hidden time bombs. There are divorces from the 1960s and 1970s where this pops up.

You wonder what that lawsuit looks like? Well, H was order to do something, long ago, and H didn't do it. It is only upon discovery that W finds out that H changed the beneficiaries.

Modernly, attorneys doing the dissolution of marriage judgments try to be clear about what rights the beneficiary spouse to a life insurance policy might have with respect to the life insurance companies. I have decent confidence that the major insurance carriers now have a workflow for registering the interest of W that cannot be destroyed by H without notifying W and getting W's permission in writing. These safeguards did not exist for the divorces from the distant past.

But, I've gone perhaps too far down this path. Back to the beginning--does the divorce paperwork have anything that supports W's claim?

Disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change.