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Retirement Plan Beneficiary Designation Controls Despite Will Provisions

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Beneficiary designation


“Estate planning” means more than just preparing and signing a will. The families of Donald and Mary Perkins learned that even when a will is in place, there still may be problems.

Mr. and Mrs. Perkins had both been married before. Each of them had three children from their prior marriages. Mr. Perkins worked as a bus driver in Shreveport, Louisiana, where he had a company life insurance policy, a pension plan benefit and a 401(k) account.

The couple presumably thought they had completed their estate plan. They had both signed wills, and those wills were perfectly valid. Each provided that, in the event of simultaneous death, they would be deemed to have survived the other.

In September, 1996, Mr. and Mrs. Perkins were riding a motorcycle when they were struck head-on by a truck. Both died instantly, and so neither one survived the other. This was the exact possibility their wills addressed, and so it seemed that Mr. Perkins’ property would pass to his three children, and Mrs. Perkins’ share would go to her three children.

Much of Mr. Perkins’ estate, however, was tied up in the three benefit plans at his place of employment. His 401(k) plan named one daughter, Allecca Perkins Tucker, as the alternate beneficiary in case his wife did not survive him. The life insurance plan named all three of his children as alternate beneficiaries.

Mr. Perkins’ retirement plan, however, was a little different. It named his wife as primary beneficiary, but named his brother as alternate beneficiary if his wife “should die before” him.

Despite the clear language of Mr. Perkins’ will, the question of entitlement to his benefits ended up in Louisiana Federal Court. When the ruling there was appealed, the U.S. Fifth Circuit Court of Appeals ended up resolving the issue.

Although non-lawyers may think that a will disposes of all property, the courts recognized that Mr. Perkins’ beneficiary designations controlled who would receive his life insurance and retirement benefits. The court pointed to the clear language of the alternate beneficiary designations on his life insurance and 401(k) plan, and awarded the former to all of Mr. Perkins’ children and the latter to the one daughter named as alternate beneficiary. The retirement plan’s beneficiary designation, however, was interpreted naming his wife because she had not died before him—those proceeds went to his wife’s estate and, ultimately, to her three children. Tucker v. Shreveport Transit Management, Inc., September 14, 2000.

The moral: an estate plan is not complete when a will (or even a trust) is signed. Beneficiary designations and “pay on death” (POD) or “in trust for” (ITF) account titling can change your estate plan. A coordinated estate plan should consider not only those types of accounts, but also “transfer on death” (TOD) accounts, joint tenancy property and other titling issues.

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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.