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First Wife Receives Retirement Account As Required By Divorce

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Illinois residents James and Nancy Smithberg had been married for 33 years when they got divorced in 1996. Their divorce decree required James to name Nancy as beneficiary of his state retirement account death benefit, and Nancy in turn gave up her claims to other retirement accounts. The rest of the couple’s property was split according to their agreement.

James remarried shortly after the divorce was final. In violation of the divorce decree, he filed a beneficiary change form naming Delores Smithberg, his new wife, to receive the death benefits.

Nancy Smithberg learned of the beneficiary change, and promptly filed a divorce court petition to force James to sign another beneficiary designation form. She argued that there was an emergency, because James Smithberg was seriously ill. James’ lawyer filed a response, and in discussions with Nancy’s lawyer assured her that the correct forms would be signed.

James’ lawyer contacted Nancy’s attorney to discuss the resolution of her lawsuit. The two lawyers discussed who would pay the attorney’s fees and court costs incurred when Nancy filed her action, but did not agree on the next step to be taken.

A few days later, James’ lawyer did in fact get the correct beneficiary form signed. He delivered it to the appropriate clerk at James’ work, but told her not to process the change until he instructed her to do so. She placed the form in her desk drawer; the next morning, James died.

Delores, James’ second wife, noting that she was still named as beneficiary on his retirement, demanded that the death benefit be distributed to her. The retirement board refused, citing the conflict between the two beneficiaries. Ultimately, the retirement board delivered the proceeds to the court for distribution as it determined to be appropriate.

Nancy, the first wife, argued that she should receive the retirement account despite the fact that Delores was named as beneficiary, since James violated the divorce agreement when he changed beneficiaries. Delores argued that she should receive the proceeds because she was named as beneficiary, and that Nancy could then sue James’ estate for his breach of the divorce agreement. The argument ultimately made its way to the Illinois Supreme Court.

One ancient tenet of equity in the our legal system is that the law will “consider done that which ought to be done.” In other words, even though James Smithberg did not properly file the amended beneficiary designation form, because he would eventually have been ordered to do so the Justices decreed that distribution of the account would proceed as if he had. The court ordered the retirement account death benefits distributed to first wife Nancy. Smithberg v. Illinois Municipal Retirement Fund, August 10, 2000.

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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.

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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.