The Forms That Outrank Your Will: Beneficiary Designations, Contingent Beneficiaries, and the ERISA Divorce Trap in North Carolina

James E. Hickmon, JD, MBA, CFP® Board Certified Specialist in Estate Planning and Probate Law, North Carolina State Bar Board of Legal Specialization
North Carolina Estate Planning & Fiduciary Law | Charlotte, North Carolina

Key Takeaways

A beneficiary designation is a contract with the plan or insurer. It generally controls who receives the account or policy proceeds, regardless of what your will or trust says.

A missing or outdated contingent beneficiary can send retirement assets into probate, accelerate income taxes, and leave money to minors who cannot legally manage it.

North Carolina law treats a former spouse as having predeceased you under your will and revocable trust after an absolute divorce. No comparable North Carolina statute removes a former spouse from a beneficiary designation.

For an ERISA-governed plan, such as a private-employer 401(k), federal law requires the plan to pay the beneficiary named in the plan documents. A former spouse who is still on the form can collect the account, even if the divorce settlement said otherwise.

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