Manning v. Hayes

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 99-20537

SYLVIA MANNING, EXECUTOR OF THE ESTATE OF HOUGHTON H. WEST,

Plaintiff-Appellant,

VERSUS

AUDREY ALLISON HAYES, ET AL,

Defendants,

AUDREY ALLISON HAYES,

Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of Texas

May 19, 2000
Before EMILIO M. GARZA, DeMOSS, and STEWART, Circuit Judges.

DeMOSS, Circuit Judge:

In this insurance dispute, the estate of a deceased ERISA plan

participant and the decedent’s ex-wife are battling over the

proceeds to an ERISA plan providing life insurance benefits. The

district court granted summary judgment in favor of Defendant-

Appellee Audrey Allison Hayes, who is both the decedent’s ex-wife

and the named beneficiary under the policy. Plaintiff-Appellant
Sylvia Manning, in her capacity as executor of the estate of

Houghton H. West, appeals. We affirm, although for reasons that

are substantially different than those employed by the district

court.

I.

On February 15, 1993, UNUM Life Insurance Company of America

issued a life insurance policy to Houghton H. West through his

employer, the Amherst Securities Group. On December 22, 1994, West

and Audrey Allison Hayes, in light of their impending marriage,

executed a prenuptial agreement titled the Separate Property

Preservation and Definition Agreement. As suggested by the title

of the document, the primary purpose of the agreement was to define

the substantial separate assets held by both West and Hayes, and to

memorialize their agreement that neither party had or would have an

equitable or legal interest in property separately owned by the

other. The agreement provided that, in the event the marriage was

terminated, neither party would assert any claim for such things as

reimbursement, aid, comfort, or support and maintenance, and

further, that neither party would assert any claim in accounts held

solely in the name of the other. The agreement recognized that

community property would be acquired during the marriage, primarily

from earnings, and that such property would be subject to a just

and equitable distribution. Finally, the agreement contained

representations that each party would attempt to avoid commingling

2
community property with separate property or the proceeds of

separate property owned by the other. Although the agreement

included a non-exhaustive list of each of the parties assets, the

agreement made no mention of employee benefits or insurance

proceeds generally, or the Unum policy in particular.

Five days later, on December 27, 1994, West and Hayes were

married. Almost one year later, on December 15, 1995, West

voluntarily designated Hayes as the beneficiary on the Unum policy.

West did not designate any alternative beneficiaries.

Six months later, on June 26, 1997, West and Hayes were

divorced. There were no children born to the marriage. The final

divorce decree holds that “no community property other than

personal effects has been accumulated by the parties,” and that

such property is “awarded to the party having possession.” The

decree then states that the foregoing division was “made pursuant

to the terms of the Separate Property Preservation and Definition

Agreement.” The divorce decree does not otherwise refer to the

terms of that or any other agreement concerning the division of

property or refer specifically to the Unum policy.

Less than one month later, on July 29, 1997, West died of

pancreatic cancer. After West’s death, Hayes claimed benefits as

the named beneficiary of the Unum policy. West’s estate disputed

Hayes’ entitlement to those benefits, arguing that Texas Family

Code § 9.301 required the proceeds to be paid to the estate. Texas

Family Code § 9.301 provides, in relevant part:

3
(a) If a decree of divorce or annulment is rendered after an
insured has designated the insured’s spouse as a beneficiary
under a life insurance policy in force at the time of
rendition, a provision in the policy in favor of the insured’s
former spouse is not effective unless:

(1) the decree designates the insured’s former spouse as the
beneficiary;

(2) the insured redesignates the former spouse as the
beneficiary after rendition of the decree; or

(3) the former spouse is designated to receive the proceeds in
trust for, on behalf of, or for the benefit of a dependant of
either former spouse.

The dispute between West’s estate and Hayes was not settled,

and in February 1998, Manning sued Hayes and Unum on behalf of the

estate in Texas probate court, seeking a declaratory judgment that

the estate was entitled to the proceeds. Unum removed on the basis

of ERISA preemption. See Employee Retirement Income Security Act,

29 U.S.C. § 1001 et seq. Shortly thereafter, Unum interpleaded the

proceeds of the policy into the registry of the district court and

was dismissed, leaving only Manning, on behalf of the estate, and

Hayes as parties to the suit.

In November 1998, both Manning and Hayes moved for summary

judgment. Manning argued that this Court’s opinion in Brandon v.

Travelers Ins. Co., 18 F.3d 1321 (5th Cir. 1994), which dealt with

similar facts, adopted Texas Family Code § 9.301 for purposes of

the federal common law applicable in similar ERISA actions.

Manning therefore argued that both Brandon and § 9.301 dictated a

result in favor of the estate. Hayes argued that Brandon was both

4
wrongly decided at the time, because inconsistent with ERISA

provisions governing competing claims for life insurance proceeds,

and subsequently undermined by the Supreme Court’s decision in

Boggs v. Boggs, 117 S. Ct. 1754 (1996), which applied an expansive

preemption analysis. Alternatively, Hayes argued that Brandon did

not purport to adopt the rule codified in Texas Family Code § 9.301

for similar ERISA actions, and that the facts at issue in Brandon

were distinguishable, such that Brandon did not dictate a result in

favor of the estate in this case.

The district court considered these motions, eventually

concluding that Hayes, as the named ERISA beneficiary, was entitled

to the proceeds of the life insurance policy. Manning timely

appealed. We review the district court’s grant of summary judgment

de novo. Clift v. Clift, __ F.3d __, 2000 WL 373981 at *2 (5th Cir.

Apr. 12, 2000).

II.

Congress passed ERISA in 1974 to establish a comprehensive

federal scheme for the protection of the participants and

beneficiaries of employee benefit plans. See 29 U.S.C. § 1001; see

also Pilot Life Ins. Co. v. Dedeaux, 107 S. Ct. 1549, 1551 (1987);

Shaw v. Delta Air Lines Inc., 103 S. Ct. 2890, 2896 (1983). ERISA

broadly preempts “any and all State laws insofar as they may now or

hereafter relate to any employee benefit plan.” 29 U.S.C.

§ 1144(a). A law “relates to” an employee benefit plan when the

5
law has “a connection with or reference to such a plan.” Shaw, 103

S. Ct. at 2900. The scope of the ERISA preemption provisions is

“deliberately expansive,” and they are consistently construed to

accomplish the congressional purpose of insuring certain minimum

standards in the administration of employee benefit plans. See

Pilot Life Ins., 107 S. Ct. at 1552.

There is no doubt that Manning’s claim on behalf of the estate

is preempted, to the extent that it relies upon the Texas

beneficiary redesignation statute. Almost every circuit court to

consider the issue, including this one, has determined that a state

law governing the designation of an ERISA beneficiary “relates to”

the ERISA plan, and is therefore preempted. See Dial v. NFL Player

Supplemental Disability Plan, 174 F.3d 606, 611 (5th Cir. 1999);

Brandon, 18 F.3d at 1325; see also Metropolitan Life Ins. Co. v.

Pettit, 164 F.3d 857, 862 (4th Cir. 1998); Mohamed v. Kerr, 53 F.3d

911, 913 (8th Cir. 1995); Krishna v. Colgate Palmolive Co., 7 F.3d

11, 15 (2d Cir. 1993); Metropolitan Life Ins. Co. v. Hanslip, 939

F.2d 904, 906 (10th Cir. 1991); Brown v. Connecticut General Life

Ins. Co., 934 F.2d 1193, 1195 (11th Cir. 1991); McMillan v. Parrott,

913 F.2d 310, 311 (6th Cir. 1990); Fox Valley & Vicinity Constr.

Workers Pension Fund, 897 F.2d 275, 278 (7th Cir. 1989). But see

Emard v. Hughes Aircraft Co., 153 F.3d 949, 961 (9th Cir. 1998)

(holding that ERISA does not preempt California constructive trust

6
or community property law in a dispute between a surviving and

former spouse over life insurance benefits), cert. denied sub nom.,

119 S. Ct. 903 (1999).

The more difficult issue is whether, having established that

the state law is preempted, the federal law governing the

resolution of this and similar cases may be reasonably drawn from

the text of ERISA itself, or must instead be developed as a matter

of federal common law. There is presently a circuit split on this

issue. A majority of the circuit courts to have considered the

issue have recognized that ERISA does not expressly address the

circumstances, if any, in which a non-beneficiary may avoid the

payment of life insurance benefits to the named beneficiary. For

that reason, these courts have held that the issue is governed by

federal common law. See, e.g., Clift, 2000 WL 373981 at *2-3;

Brandon, 18 F.3d at 1325-26; see also Hill v. AT&T Corp., 125 F.3d

646, 648 (8th Cir. 1997); Mohammed, 53 F.3d at 913.

With respect to a former spouse’s claim as a designated

beneficiary, this Court has specifically held that the former

spouse may waive his or her beneficiary status in a subsequent

divorce decree or agreement, provided the waiver is explicit,

voluntary and made in good faith. Clift, 2000 WL 373981 at *3;

Brandon, 18 F.3d at 1326-27. In Brandon, we held that the former

spouse effectively waived her beneficiary status by virtue of

explicit language in the divorce decree depriving her of any

7
interest in the participant’s employee benefit plans. See id. at

1323, 1327. Thus, in this Circuit, the determination of who is

entitled to the proceeds of an ERISA plan providing life insurance

benefits may depend upon more than merely the plan documents, and

may be properly defined by reference to the federal common law of

waiver as applied to the particular facts of the case.

Hayes urges a contrary rule. Hayes contends that ERISA

§ 1104(d) expressly requires that plan benefits be paid directly to

the ERISA designated beneficiary, and further, bars any

inconsistent federal common law permitting a broader inquiry.

Hayes thus argues that the preemption issue is one of conflict

preemption, rather than preemption under the “relates to” clause of

§ 1144(a).

The Sixth Circuit is the only circuit to unambiguously employ

this minority approach. See McMillan v. Parrott, 913 F.2d 310

(6th Cir. 1990); see also Metropolitan Life Ins. Co. v. Marsh, 119

F.3d 415 (6th Cir. 1997); Metropolitan Life Ins. Co. v. Pressley,

82 F.3d 126 (6th Cir. 1996). The decisions of that circuit hold

that ERISA § 1104(d), which simply provides that plan

administrators are to discharge their duties “in accordance with

the documents and instruments governing the plan,” expressly

provides the statutory rule for resolving competing claims to

insurance proceeds. Indeed, the Sixth Circuit construes this

statutory subsection to set forth a “clear mandate” that plan

8
administrators determine the beneficiary with reference to the plan

documents, and only the plan documents. See Marsh, 119 F.3d at 420

(“ERISA itself supplies the rule of law for determining the

beneficiary.”); Pressley, 82 F.3d at 130 (Section 1104(d)

establishes “a clear mandate that plan administrators follow plan

documents to determine the designated beneficiary.”); McMillan, 913

F.2d at 312 (holding that § 1104(d) establishes the exclusive rule

for determining beneficiary status). Thus, under the Sixth

Circuit’s minority rule, the named beneficiary must always prevail,

without regard to any other circumstances or provisions of law.1

Hayes relies upon this analysis, as well as the Supreme

Court’s recent disposition in Boggs, which involved a clear case of

conflict preemption in a different context, for the proposition

that ERISA precludes any reliance upon federal common law when

resolving a dispute between a named ERISA beneficiary and another

claimant. The district court essentially accepted these arguments,

holding that the controlling ERISA law was to be drawn directly

from ERISA § 1104(a) rather than the federal common law. The

district court repudiated this Court’s analysis in Brandon, and

1
We note in passing that even the Sixth Circuit’s application
of the minority rule has, at times, been less than enthusiastic.
See Pressley, 82 F.3d 126, 130 (6th Cir. 1996) (noting that McMillan
“dictates the disposition of this case,” and that the panel was
“not free to reject it in favor of some other approach”); McMillan
v. Parrott, 913 F.2d 310, 312 (6th Cir. 1990) (setting forth an
alternative holding premised upon application of federal common
law).

9
opined that it was wrongly decided. The district court likewise

relied upon stray language from the Supreme Court’s decision in

Boggs as additional support for the proposition that the federal

common law can have no place when determining the beneficiary of an

ERISA life insurance policy.

III.

We conclude that the district court erred. The rule announced

by this Court in Brandon and recently reaffirmed in Clift is the

law in this Circuit. Neither the district court nor a panel of

this Court is at liberty to change that rule. Moreover, we are not

persuaded, in the context of this case and premised upon the

arguments made by these parties, that the rule requires any

correction.

Section 1104 defines the fiduciary duties owed by the plan

administrator to plan participants and beneficiaries. That section

does not either expressly or implicitly purport to establish any

methodology for determining the beneficiary of an ERISA plan or for

resolving competing claims to insurance proceeds. Thus, considered

in isolation, § 1104(d) is a very thin reed upon which to find

complete conflict preemption with respect to competing claims to

life insurance proceeds. While we can certainly appreciate the

simplicity of the bright line rule embraced by the Sixth Circuit,

that simplicity comes at too great a cost. As we noted in Brandon,

the law of family relations, which includes an individual’s right

10
to expressly apportion property upon divorce, has traditionally

been a fairly sacrosanct enclave of state law. See Brandon, 18

F.3d at 1327. Similarly, the Sixth Circuit’s bright line rule that

a beneficiary designation cannot be challenged would supplant what

is a fairly uniform set of state laws providing that a named

beneficiary who kills a plan participant in order to obtain the

plan benefits is not entitled to recover those proceeds. See

Emard, 153 F.3d at 959 n.11 (noting that forty-four states and the

District of Columbia have such laws in effect). While ERISA

§ 1144(a) requires the conclusion that the state law governing such

matters is itself preempted when it relates to an ERISA plan, we

have no trouble concluding, as have many of the courts that have

addressed the issue, that the traditional deference given to state

law in these areas supports our decision to borrow from state law

when determining the federal common law that should control such

claims. See, e.g., Clift, 2000 WL 373981 at *3; Mohamed, 53 F.3d

at 913; Brandon, 18 F.3d at 1325. In sum, ERISA is broad enough in

its preemptive scope to accomplish the purposes of ERISA; namely

the imposition of adequate safeguards with “respect to the

establishment, operation, and administration” of employee benefit

plans for the benefit of ERISA plan participants and beneficiaries.

See 29 U.S.C. § 1001(a). There is no additional need to breathe

imaginary preemptive effect with respect to competing claims for

life insurance benefits into general provisions addressing another

11
topic altogether.

Neither is a contrary approach required by Boggs. In Boggs,

two parties asserted competing claims to the pension benefits of

one Isaac Boggs after his death in 1989. Boggs’ sons from a prior

marriage claimed entitlement to the pension benefits by virtue of

their deceased mother’s testamentary transfer of her state law

community property interest in Boggs’ undistributed pension

benefits. Boggs’ surviving wife claimed entitlement to the pension

benefits by virtue of ERISA § 1055, which mandates that covered

pension plans protect the interests of surviving spouses by

providing benefits in the form of a qualified joint and survivor

annuity, and ERISA § 1056, which provides that the benefits due

under a covered pension plan are inalienable and unassignable,

absent a qualified domestic relations order (QDRO) meeting certain

statutory requirements.

Recognizing that Boggs was positioned “at the intersection of

ERISA pension law and state community property law,” 117 S. Ct. at

1760, the Supreme Court held that “[t]he surviving spouse annuity

and QDRO provisions, which acknowledge and protect specific pension

plan community property interests, give rise to the strong

implication that other community property claims are not consistent

with the statutory scheme,” 117 S. Ct. at 1763. The Supreme Court

noted that Congress significantly strengthened the specific

statutory protection afforded surviving spouses against competing

12
interests by amending the statute in 1984. See id. at 1761. The

Supreme Court then employed a conflict preemption analysis to hold

that Louisiana community property law permitting a testamentary

transfer of a former spouse’s community property interest in the

undistributed pension benefits of her former spouse, who remarried

prior to death, was completely preempted by contrary provisions of

ERISA that were plainly intended to provide an income stream to

surviving spouses that was both inalienable and immune to competing

interests absent compliance with the specific statutory framework

for preserving such interests with a QDRO. See id. at 1763-66.

Hayes maintains, and the district court at least implicitly

held, that Boggs somehow undermines this Court’s analysis and

reliance upon federal common law in Brandon. We disagree. The

principles at work in Boggs are clearly inapplicable in this case.

As an initial matter, this case does not involve either pension

benefits or the express provisions of ERISA ensuring special

protection to surviving spouses in the context of pension benefits.

Both ERISA § 1055 and ERISA § 1056 are facially limited in

application to pension plans, and neither section purports to have

any application with respect to competing claims to benefits under

a non-pension employee welfare plans, such as the life insurance

policy at issue here. See 29 U.S.C. §§ 1055, 1056; see also

Brandon, 18 F.3d at 1324 (characterizing employer-provided life

insurance policies as “welfare plans” within the meaning of 29

13
U.S.C. § 1002(1)). Of equal importance, this case does not involve

the assertion of any community property interest. Hayes is not

asserting a community property interest. To the contrary, Hayes is

the designated beneficiary under the plan. For that reason, those

ERISA provisions that have been construed to protect those

interests of a former spouse that are inconsistent with plan

documents or other ERISA provisions, provided those interests are

preserved in a QDRO, are simply inapplicable to this dispute.2

Likewise, the estate does not claim entitlement on the basis of a

community property interest. Rather, the estate seeks to void

West’s designation of beneficiary by virtue of the statutory

presumption erected by Texas Family Code § 9.301, and then to rely

instead upon Texas law governing the distribution of assets in the

absence of such a designation. As should be apparent, Boggs dealt

with a clearly distinguishable situation involving explicit ERISA

provisions addressing an issue plainly within the express

regulatory provisions of the statute. In sum, we are not persuaded

2
The district court seems to have confused these facts in its
written decision. For example, the district court recognized that
the statutory provisions protecting surviving spouses were
inapplicable here, although it premised that observation upon the
fact that West did not remarry, rather than upon the fact that
Manning’s claims do not involve pension benefits. Similarly, the
district court noted that ERISA generally requires that a former
spouse preserve his or her interest in plan benefits by obtaining
a QDRO, but noted that Hayes’ non-compliance with those provisions
could be excused in this case, not because she is the named
beneficiary who has no need to preserve her consistent interest,
but because West did not choose to remarry in the month following
the date upon which his divorce decree became final.

14
that Boggs requires any more expansive view of the discrete ERISA

preemption issue presented in Brandon.

The district court’s broad reliance upon § 1104 for the

proposition that ERISA expressly requires payment to a named

beneficiary without regard any other circumstances and without

resort to federal common law reflects nothing more than an

inappropriate reliance upon the Sixth Circuit’s minority position,

which has been soundly rejected by this Circuit and a majority of

other circuits to consider the issue. Similarly, the district

court’s reliance upon Boggs is without support; Boggs does not

provide any rule of law that may be applied to this case. For the

foregoing reasons, we conclude a reconsideration of the legal

principles set forth in Brandon and recently reaffirmed in Clift is

neither appropriate nor desirable.

IV.

Having ascertained that our Circuit follows the majority

approach by applying federal common law to disputes between a non-

beneficiary claimant and the named ERISA beneficiary to life

insurance proceeds, and that neither the express language of ERISA

nor the Supreme Court’s decision in Boggs require that we abandon

that approach, we must now determine the content of the applicable

federal common law.

Manning correctly notes that federal common law may be

determined by reference to analogous state law. See Wegner v.

15
Standard Ins. Co., 129 F.3d 814, 818 (5th Cir. 1997); Sunbeam-Oster

Co., Inc. Group Benefits Plan for Salaried and Non-Bargaining

Hourly Employees v. Whitehurst, 102 F.3d 1368, 1374 n. 18 (5th Cir.

1996); Jones v. Georgia Pacific Corp., 90 F.3d 114, 115 (5th

Cir. 1996); Todd v. AIG Life Ins. Co., 47 F.3d 1448, 1451

(5th Cir. 1995). Manning then argues on behalf of the estate that

this Court incorporated the requirements of the Texas redesignation

statue, Texas Family Code 9.301, into the federal common law in

Brandon.

We disagree. While it is true that we used the Texas statute

as a starting point, holding that we would “adopt the Texas rule

creating a presumption of waiver absent redesignation following

divorce,” Brandon, 18 F.3d at 1326, we recognized that “wholesale

adoption of the Texas redesignation statute” would not

“sufficiently protect the interests of [ERISA] beneficiaries,” id.

at 1326. We therefore modified that rule by requiring that any

waiver by a designated beneficiary of ERISA life insurance proceeds

be “explicit, voluntary, and made in good faith.” Id. at 1327.

Moreover, we measured the adequacy of the asserted waiver under

this modified standard with reference to the existing federal,

rather than state, common law. See Brandon, 18 F.3d at 1326-27

(discussing Lyman Lumber Co. v. Hill, 877 F.2d 692 (8th Cir. 1989)

and Fox Valley & Vicinity Constr. Workers Pension Fund, 897 F.2d

275 (7th Cir. 1989)). We therefore reject Manning’s argument that

16
Brandon necessarily requires a result in favor of the estate

because we incorporated the Texas redesignation statute into the

federal common law when deciding that case. To the contrary,

whether the estate is entitled to the proceeds of the life

insurance policy must be determined with reference to the express

contractual language purporting to establish Hayes’ waiver, as well

as any other factual circumstances bearing upon whether that waiver

was intentionally and voluntarily made in good faith. See Brandon,

18 F.3d at 1322, 1327 (discussing divorce decree provisions as well

as other facts bearing upon the issue of waiver).

V.

Brandon provides the rule of federal common law applicable to

this dispute. That rule is that a named ERISA beneficiary may

waive his or her entitlement to the proceeds of an ERISA plan

providing life insurance benefits, provided that the waiver is

explicit, voluntary, and made in good faith. The final question

requiring our consideration is whether Hayes in fact waived her

beneficiary status.

There does not appear to be any issue relating to whether the

parties acted voluntarily or in good faith when signing the

prenuptial agreement that is made the basis of Manning’s waiver

argument. To the contrary, the sole issue appears to be whether

the express provisions of that agreement establish Hayes’ explicit

waiver of her status as the named ERISA beneficiary under the Unum

17
policy as a matter of law.

Manning asserts that Hayes waived her interest in the policy

as a matter of law by signing the prenuptial agreement, which was

later made the basis of the property division ordered by the

divorce decree. Hayes responds that the prenuptial agreement is

incompetent to waive her interest in the policy because it was

executed prior to the creation of her interest as a designated

beneficiary and because the document does not explicitly waive her

interest in either West’s employee benefit plans or the Unum policy

in particular.

In deciding this issue, we are guided by the treatment given

analogous waiver language in the existing precedent. In Brandon

and Clift, we held that former spouses effectively waived their

interest in the proceeds of ERISA life insurance policies by virtue

of explicit language appearing in the divorce decrees. In Brandon,

the divorce decree expressly divested the former spouse of any

interest in or claim to:

Any and all sums, whether matured or unmatured,
accrued or unaccrued, vested or otherwise, together
with all increases thereof, the proceeds therefrom,
and any other rights relating to any profit-sharing
plan, retirement plan, pension plan, employee stock
option plan, employee savings plan, accrued unpaid
bonuses, or other benefit program existing by
reason of Petitioner’s past, present, or future
employment.

Brandon, 18 F.3d at 1323. In Clift, a more obvious case of waiver,

the divorce decree expressly divested the former spouse of any

18
interest in or claim under “any and all policies of life insurance

(including cash value) insuring the life” of her former husband.

Clift, 2000 WL 373981 at *4.

Although neither case technically involves life insurance

benefits, we have likewise invoked the Eighth Circuit’s decision in

Lyman Lumber v. Hill, 877 F.2d 692 (8th Cir. 1989), and the Seventh

Circuit’s decision in Fox Valley & Vicinity Constr. Workers Pension

Fund, 897 F.2d 275, 278 (7th Cir. 1989), when measuring the adequacy

of an alleged waiver of beneficiary status under federal common

law. See Brandon, 18 F.3d at 1326.

In Lyman Lumber, a former spouse, who was also the named

beneficiary, claimed benefits under her deceased husband’s ERISA

profit-sharing plan. Her claim was opposed by a contingent

beneficiary, who relied upon the terms of the divorce decree, which

provided that the husband would “have as his own, free of any

interest” of the former spouse, “his interest in the profit-sharing

plan of his employer.” Lyman Lumber, 877 F.2d at 693. The Eighth

Circuit held that the divorce decree was adequate to divest the

former spouse of any shared ownership interest under the profit-

sharing plan, but that the divorce decree was not adequate, absent

specific language mentioning the beneficiary interest, to divest

the former spouse of her status as plan beneficiary. See id. at

693-94. Thus, the Lyman Lumber court found no waiver.

In Fox Valley, a former spouse, who was also the named

19
beneficiary, claimed entitlement to the proceeds of a lump sum

death benefit under the deceased participant’s ERISA pension plan.

Her claim was opposed by the participant’s mother, who claimed that

the former spouse had waived her interest in the pension plan by

virtue of language in the divorce decree, which provided:

The parties each waive any interest or claim in and
to any retirement, pension, profit-sharing and/or
annuity plans resulting from the employment of the
other party.

Fox Valley, 897 F.2d at 277. The Fox Valley court held that the

preceding language was adequate to waive the former spouse’s

interest in the lump sum death benefits payable pursuant to the

deceased participant’s pension plan. Id. at 282.

Underlying the result in each of these cases is a focus upon

the specificity or explicitness of the language used to affect the

alleged waiver. Clift presents the easiest case, given that the

former spouse expressly waived any interest in life insurance

policies insuring the life of her former husband. The case is also

instructive because in Clift, we did not distinguish between an

interest in the life insurance policy and beneficiary status under

that policy, as the Eighth Circuit did in Lyman Lumber. Indeed,

Clift expressly declined the Seventh Circuit’s lead in this regard,

by rejecting a former spouse’s invitation to hold that magic words,

such as a right to “proceeds” or a “beneficiary interest” must be

included in a valid waiver. The Court explained that, while waiver

will not be presumed in the absence of fairly explicit language

20
setting forth the waiver, neither is any particular formulation

required. See Clift, 2000 WL 373981 at *3-4. Rather, the Court

clarified that the Court “will only find waiver if, upon reading

the language in the divorce decree, a reasonable person would have

understood that” the beneficiary was “waiving [his or] her

beneficiary interest in the life insurance policy at issue.” Id.

at *4. Brandon and Fox Valley serve as examples of less obvious,

but nonetheless adequate, waivers. In both of those cases, the

courts were persuaded by divorce decrees that explicitly divested

the former spouse of any interest arising from the employment of

the participant spouse. Thus, although we must eschew any

mechanistic formulation of the language required to cause a valid

waiver, the inclusion of language explicitly divesting a former

spouse of an interest in any and all employee benefit plans of the

other is probably sufficient to support an alternative

beneficiary’s claim that the former spouse waived his or her

beneficiary status.

Applying these principles to this case, we find no waiver.

The prenuptial agreement was executed prior to the time that Hayes

was designated as beneficiary under the policy. The clear purpose

of the document, as reflected by the title, was to define and

provide for the preservation of separate property brought to the

marriage. The broad language waiving West’s and Hayes’ interests

in the other’s “property” does not in any manner either explicitly

21
or implicitly contemplate waiver of a subsequently acquired

beneficiary interest in a life insurance policy.

Manning suggests that the prenuptial agreement was

incorporated into the divorce decree, such that the terms of that

agreement were revived and applied to the parties’ then-existing

interests. We disagree. As an initial matter, the divorce decree

does not purport to incorporate or revive the terms of the

prenuptial agreement. To the contrary, the divorce decree provides

that there is no community property to be divided aside from

personal effects, and that that property would be awarded to the

person in possession. The divorce decree then provides that the

foregoing division, i.e. that each party retained their own

personal effects, was made pursuant to the Separate Property

Preservation and Definition Agreement. The divorce decree does not

provide that either West’s or Hayes’ interests were otherwise being

divided in accordance with that agreement.

Moreover, even if we agreed that the divorce decree

effectively divides the parties’ after-acquired interests in

accordance with the prenuptial agreement, we would still find no

waiver here. While the prenuptial agreement is broadly drafted,

there is nothing in that agreement either implicitly or explicitly

addressing either insurance or employee benefits. Likewise, and as

set forth above, there is nothing in the agreement that would have

placed a reasonable person on notice that Hayes was waiving her

after-acquired beneficiary interest in the Unum life insurance

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policy. See Clift, 2000 WL 373981 at *4.

To conclude, we have not found any cases holding that an

agreement negotiated prior to marriage for the purpose of defining

and preserving separate property is effective to negate an insured

spouse’s subsequent and voluntary decision to designate the other

spouse as a named beneficiary under an ERISA plan. We do not say

that such an agreement would never suffice, but something

substantially more than the tangential and obscure references to

each of the parties “property” rights would have to be present to

support a finding of waiver. The divorce decree in this case is

likewise inadequate to revive the preclusive effect of the

agreement, if any. The divorce decree relies upon and invokes the

agreement solely for the purpose of clarifying that there is no

community property and therefore no property to be divided by the

family court. The divorce decree does not purport to revive the

various provisions of the agreement for the purpose of precluding

Hayes’ claim to benefits pursuant to her status as the designated

beneficiary of West’s life insurance policy. For these reasons, we

find no waiver of Hayes’ interests, and affirm the district court’s

holding that Hayes is entitled under ERISA and subject to the terms

of the plan to recover the proceeds of the Unum life insurance

policy.

CONCLUSION

The district court is affirmed.

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