Legal Question in Wills and Trusts in Alabama
Beneficiary of father's life insurance and 401(k)
My father was diganosed with stomach cancer in Feb. of 2002.After telling me the news he also informed me that he had filed for a divorce from my stepmother.They have two minor childern.They went to court in December of the same year.The judge told the lawyers that they should try to work things out between their clients,but he did order for all of their assets to be frozen until a decision could be reached.My father had already changed his life insurance policy to include me as a beneficiary,he told me that he did this because he knew that she would not be fair to me.They didn't reach a decision because she wanted to leave me nothing and my father would not have it.He told many people including family memebers that he wanted ALL his childern treated equally.The doctors said he was going to die,he went back to my stepmother on June 3 2003.His ploicy had never been changed not to include me until June 9 2003 and my father died June 28, 2003.Now she collected 400,000.00,I recieved nothing.She has since told me that she never liked me and that she has no intention of giving me anything. My question...Can I do anything to collect what should be my part of his life insurance and 401(k)?
2 Answers from Attorneys
Re: Beneficiary of father's life insurance and 401(k)
So, was the policy actually changed to not include you? If so, you are not entitled to it. Did he have a will?
Re: Beneficiary of father's life insurance and 401(k)
There's a couple of issues here right off the bat. One, Life insurance goes automatically to the named beneficiary - regardless of the marital status or "wishes" of the deceased. It does not go through the estate and is not an asset of the estate in any way whatsoever. Do you have any papers indicating that you are the beneficiary? If so, then you need to apply for the proceeds and the insurance company will give them to you. If you do not have any such papers, there may be ways to find out - although it is generally advisable to work those things out long before in anticipation of death. It is possible that the insurance company will let you know who the designated beneficiary is. If the insurance company did not give the money to the designated beneficiary - then they are the ones who are liable.
As to the 401K your step-mother is entitled to what is called an "elective share" under Alabama law. A spouse cannot be disinherited completely by will and has a right to a certain percentage of the estate regardless of the will. Was there a will? If it provides for the minimum amount than that is all there is to it. The will needs to be probated and followed to the T.
If there is no will then you are indeed entitled to a certain percentage of the estate depending on how many other siblings you have. But how much is in the 401K? Is it merely a few thousand dollars? If so, attorney fees will likely cost more than the value of the money if there is going to be a dispute. If it is several hundred thousand then it is worth fight for of course. It all varies. Actually though, the estate still needs to be probated, and you cannot be disinherited completely. The Judge should give you the money even if it is a small amount. You need to let the probate court know that you are the child of the decedent and entitled to your share.
BTW, what county are you in? If you just want to talk, please give me a call, and I'd be happy to answer further questions.
Sterling L. DeRamus
Attorney At Law
Birmingham, Alabama
205-458-1100
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