“My boyfriend and I have lived together for 13 years but he is still officially married to another woman. He has a life insurance policy and I’m the beneficiary, and I’m also the beneficiary of his 401(k). Do we need a will and do I have to worry about his wife getting the money?”
Nj.com’s recent article entitled “Who will get my boyfriend’s property if he dies? Me or his wife?” says that a couple that’s lived together for some time where one is still married to another can create some issues. If the boyfriend has a life insurance policy and 401(k) with the girlfriend as beneficiary, they should draft a will to make certain that the estranged wife does not get that money.
Despite the fact that the girlfriend is the named beneficiary of the life insurance and the 401(k), there is more you need to think about.
Without a will, probate assets (the assets held by individuals in their own name without a beneficiary designation or assets held in joint names as tenants in common) will be transferred by the laws of intestacy.
The laws of intestacy provide first to a spouse and/or children of the deceased, without regard to whether the couple are living together.
If the deceased had no spouse or children, state intestacy laws say that property passes to parents then siblings.
As far as the life insurance policy and 401(k), absent a valid waiver, the boyfriend’s spouse will certainly have a legal right to the 401(k) and may have a contractual claim on the life insurance either through a premarital agreement or a property settlement agreement.
Therefore, even if the assets are paid out to the girlfriend, the contractual claim may provide the spouse with a successful action against her.
A spouse may also have rights to the policy or part of the 401(k) as a result of the marriage in a future divorce proceeding.
Reference: nj.com (June 21, 2021) “Who will get my boyfriend’s property if he dies? Me or his wife?”