Can State Law Remedies Revive Statutes Stricken by ERISA's Preemption Provision?

Authors

Justin A. Kesselman

Abstract

Since the United State Supreme Court's holding in Egelhoff that ERISA preempts state law revocation-on-divorce statutes, courts and legal scholars have attempted to fashion a way to apply the policies of these statutes to effect the presumed intent of an employee not to provide retirement plan benefits to a former spouse. This paper analyzes those efforts and contrasts the statutory remedy suggested in the Uniform Probate Code with the common law remedy of imposing a constructive trust on the recipient of those benefits. In this author's view, the constructive trust is the sounder approach, because it preserves the presumption embedded in ERISA that an ex-spouse's continued presence in the plan documents is an expression of the participant's intent. Although the statutory approach will often produce a similar result, it fundamentally changes the nature of the remedy by flipping the presumption and making it irrebuttable. By replacing a federal rule that errs on the side of the spouse with a state rule that errs against the spouse, the statutory remedy seems more likely to fall within ERISA's preemptive scope.

Recommended Citation

Kesselman, Justin A. (2012) "Can State Law Remedies Revive Statutes Stricken by ERISA's Preemption Provision?," ACTEC Law Journal: Vol. 38: No. 2, Article 5.
Available at: https://scholarlycommons.law.hofstra.edu/acteclj/vol38/iss2/5