by Guest » Wed Feb 06, 2013 07:28 pm
Father married new wife, (#5) on 4/10/2012. He divorced wife#4 8/21/12 (he didn't know he was a bigamist). He died of cancer 12/17/2012. My brother and I are the beneficiaries of his work life insurance policy that he initially got in 1984. Texas Tech changes companies on 9/1/1997. I know that Texas has something called inception at title rules...meaning, this policy he bought so long ago is considered HIS SEPARATE property. The only way that "community property" funds could have been used is if they consider my father's payroll deduction for the premiums on this policy as "community property". The insurance company informed my brother and I that she can make a claim on a portion of the death benefit. I say she cannot because of the inception at title rule...can she walk away, after less than 6 months of "legal" marriage", with 50% of the payout...or only a position based on the assumption Dad's salary was partly hers, (they NEVER co-mingled ANYTHING as he didn't trust her enough to place her as joint owner of bank accounts, etc) They were married and lived in Texas.....
HELP...another gold digger shouldn't be able to screw the adult children of a man who worked hard his whole life to SAVE lives...brother and I are listed as beneficiaries and wife#5 NEVER was listed as one....ever.
HELP...another gold digger shouldn't be able to screw the adult children of a man who worked hard his whole life to SAVE lives...brother and I are listed as beneficiaries and wife#5 NEVER was listed as one....ever.
Posted: Fri Feb 08, 2013 01:47 am Post Subject:
Now that you've come up for air . . .
The interpretation of Texas community property law is pretty straightforward: everything that is not community property is defined as separate property, including property which was owned prior to the marriage.
Since life insurance is an "owned" thing, it qualifies under the same standard. If it is truly not an ERISA policy (not a group life insurance benefit of the university, but an individually owned policy), then state law will govern.
Another way to view it:
One of the ways spouses frequently show that property is not community property is to rely on the inception of title rule. Under the inception of title rule, a property's character is based on the time and manner in which a person first acquires an interest in the property. Generally, if a person first acquires an interest in the property before marriage, the property is considered separate property; if a person first acquires an ownership interest in the property during marriage, the property is considered to be community property. Once the character of the property is established under the inception of title rule, that character will not change because of mutations in the property's form. For example, if the property was sold or exchanged for other property.
What you need to do is copy the following excerpt from the Texas State Constitution and send it to the insurance company with your and your brother's combined claim for 100% of the death benefit.
TEXAS CONSTITUTION
ARTICLE 16, SECTION 15:
All property, both real and personal, of a spouse owned or claimed before marriage, and that acquired afterward by gift, devise or descent, shall be the separate property of that spouse; and laws shall be passed more clearly defining the rights of the spouses, in relation to separate and community property; provided that persons about to marry and spouses, without the intention to defraud pre-existing creditors, may by written instrument from time to time partition between themselves all or part of their property, then existing or to be acquired, or exchange between themselves the community interest of one spouse or future spouse in any property for the community interest of the other spouse or future spouse in other community property then existing or to be acquired, whereupon the portion or interest set aside to each spouse shall be and constitute a part of the separate property and estate of such spouse or future spouse; spouses also may from time to time, by written instrument, agree between themselves that the income or property from all or part of the separate property then owned or which thereafter might be acquired by only one of them, shall be the separate property of that spouse; if one spouse makes a gift of property to the other that gift is presumed to include all the income or property which might arise from that gift of property; spouses may agree in writing that all or part of their community property becomes the property of the surviving spouse on the death of a spouse; and spouses may agree in writing that all or part of the separate property owned by either or both of them shall be the spouses' community property.
(Amended Nov. 2, 1948, Nov. 4, 1980, Nov. 3, 1987, and Nov. 2, 1999.)If the insurance company pays you and your brother the full death benefit, you might expect to be sued by the "widow". The good news is that Texas law puts the burden of proof on the spouse who claims an entitlement to community property. In the absence of clear and convincing proof, the claim fails.
If sued, you have to answer the complaint. That will cost a few bucks (probably a couple of hundred). Your response would be fairly brief. All you have to do is show that the policy was created long before the marriage, and the case is closed. At the first hearing on the matter, it should be solved with a simple "Respondent's Motion for Summary Judgment" -- ten minutes in front of a judge, if even that much.
But don't let the insurance company intimidate you into accepting anything less than 100% of the death benefit. As far as I can tell, it's your money, not hers.
If you need the name of a great Texas attorney who specializes in life insurance cases, I have two (partners) in McAllen that I do expert witness work for who I can wholeheartedly recommend. They might charge you a couple of hundred dollars to write a very strongly worded letter to the insurance company to get them to see the light. If that doesn't work, I'm sure they'd be happy to sue the insurance company for much more than the death benefit.
Posted: Fri Feb 08, 2013 02:35 am Post Subject: I KNEW my 3 weeks of research would pay off..!!
I would very much be interested in the guys you know in McAllen. I need that letterhead and their expertise and reputation!
I have already requested from Texas Tech the paperwork that shows the policy was initiated first in 1984, then switched to One America in 1997.
I don't know what else to request to prove my case...it is the WIFE'S job to prove her marriage and whatever......
The reason I am 98% sure this is not ERISA, (aside from being told by 3 separate people from Texas Tech AND One America that it was not), is the clause at the bottom releasing AUL from responsibility if a community property interest couldn't be proven......
Oh Man...MaxHerr...you are my new hero....
thanks so much for giving me a ray of hope after 3 weeks of insane reading, crying and letter writing!
Posted: Tue Jul 09, 2013 11:25 am Post Subject: update
Just an update.
A couple of months ago, the insurance company asked for and was granted an interpleader. The gold digger's lawyer isn't speaking to my lawyer....not answering our request for information, so it looks like I am going to have to FORCE her and her lawyer to respond. I found HER question on another web site and the people there told her she had no chance unless she could prove my father was under "undue" influence or that my father was incompetent to know what he was doing when he changed the beneficiary to my brother and I.....ALL preempted by ERISA, (Yes, I was lied to by the insurance company AND Texas Tech.....apparently it IS an ERISA policy). The gold digger was never the beneficiary.....the wife before her was still listed as the beneficiary. My UNCLE was the one who obtained all the paperwork for my father to complete and I have at least 10 people who are willing to attest that my father had wanted his children to be the beneficiaries of his life insurance policy MONTHS before he even knew 100% that he was terminal.
My lawyer CLAIMS nobody will give him the SPD....I think he is just a lousy lawyer and never asked for it, (He deals with probate and family law....not insurance).
As my friend MAX has stated to me......I know it'll all be taken care of with a summary judgement......ERISA preempts state law....and the policy was incepted YEARS before coveture...or their marriage....gold digger was never the beneficiary, so she wouldn't win even if she COULD prove undue influence. The incompetence part was taken care of when she demanded my father be declared competent during their divorce proceedings a few months before he died.....
I will let ya'll know the outcome when it happens....which is hopefully soon.....(I'm sure the gold digger...in her desperation...will try to drag this all out longer than needed...but one day this will be over!)
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