Ex waived right to assets during divorce

QSeveral years after my divorce, my ex-husband died in an accident. He left no will. When we got divorced, he had $1 million in life insurance that paid double if he had an accidental death. He had to keep that insurance going to pay his support for our two children in the event of his death. After our divorce, we remained friends and he voluntarily increased child support as he earned more money.

At the time he died, through his work he also had $200,000 in a profit-sharing plan and $60,000 in a 401(k). When he got that insurance and started that plan, he named me as beneficiary. In the divorce agreement, I waived my interests in those assets. But he never changed the beneficiary on the insurance or the profit sharing plan. Although I was never asked to and never did sign off, he named the children as beneficiary of the 401(k).

Am I entitled to any of this money?

AThe contract between your deceased husband and the insurance company says the money has to be paid to you. Some states say that’s the start and end of the story. But not Massachusetts.

Other states say you have to look to the intent of the insured. If the facts show he wanted you to have that money, then you’d get it. But not necessarily so in Massachusetts.

I assume, as is usual, that your separation agreement was incorporated into your divorce judgment and it survived entry of the judgment as a separate and enforceable contract. The one specified exception likely was that child-related issues could be modified. So you’ve got two strikes. One is your contractual waiver.

The second strike is that the judgment was never modified. That means the insurance money must go into a trust for the children. That money can be used to pay for their support and care, health, education and welfare. Whatever is left over must go 50/50 to the two children.

The 401(k) has a separate analysis. In the agreement, you made a clear and unambiguous waiver to a specific item. So, here, too, the general rule is that you don’t get the money. Your ex didn’t sign a Qualified Domestic Relations Order that transferred the money in that 401(k) to you.

The 1974 Employee Retirement Income Security Act only applies if your ex tried — which he did not — to alienate his beneficial interest. ERISA does not apply to a “waiver” of a beneficial interest, which is what you did. So, the money goes into the children’s trust. This is the same result for money in his profit sharing plan.

So what can a mother do? I suggest you be extra nice to your children and hope that — once they get control of their money — they’ll give you very nice holiday and birthday presents. Gerald L. Nissenbaum has been a trial lawyer in Boston since 1967 and concentrates his practice on family law. Any legal advice in this column is general in nature, and does not establish a lawyerclient relationship. Send questions to dearjerry@bostonherald.com.