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Beneficiary Form in Substantial Compliance With 401(k) Rules

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James Marier was married to his wife Kathleen for twelve years, until the couple divorced. As often happens, Mr. Marier continued to maintain a good relationship with his step-daughter, Tracy Marks. Her children called Mr. Marier “Grandpa Jim,” and he continued to spend holidays with his ex-wife, his step-daughter and the grandchildren.

Mr. Marier had a 401(k) retirement plan through his work, and after his divorce named his mother as its primary beneficiary. Later, after a visit from his sisters, he decided to break from his family altogether, and he wrote a will naming his step-daughter as personal representative and primary beneficiary. He also decided to change the beneficiary to leave his 401(k) plan to Ms. Marks.

Mr. Marier filled out the change of beneficiary form, listing Ms. Marks as his primary beneficiary. In the space marked “relationship” he apparently wrote in something, but then covered the entry with white-out. The form as sent to the plan administrator left the space blank. The administrator, in turn, mailed the form back to Mr. Marier with a note that he needed to complete empty space, and noting that “white-out is not accepted.”

Unfortunately, Mr. Marier’s health was declining rapidly by that time. When the form arrived he had just undergone surgery for a brain tumor, and the form was never returned to the 401(k) administrator. Mr. Marier did call the administrator’s office at one point, and asked who was named as his beneficiary; the individual who spoke with him looked at a scanned copy of the form and assured him that his step-daughter was his primary beneficiary.

When Mr. Marier died, the 401(k) administrator initially determined that the last beneficiary designation was improper and began the process to pay the plan balance to Mr. Marier’s mother’s conservator. Ms. Marks objected, arguing that she had been properly named as beneficiary. The administrator then decided that the failure to fill in the relationship line was “not a material omission,” especially since previous beneficiary designation forms on file adequately identified her, but turned to the courts to determine who should receive the account balance.

The trial court found that the 401(k) plan required that the form be properly completed, and ordered the money paid to Mr. Marier’s mother. The Eighth Circuit of the U.S. Court of Appeals disagreed, however, ruling that the plan’s decision to accept the form as being in substantial compliance, even though the administrator then turned the matter over to the courts, was sufficient to leave the account to Ms. Marks. Marks v. Irwin Bank & Trust, October 19, 2006.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.