ACTEC Law Journal


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.



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