Does a Beneficiary Designation “Trump” a Will?
I recently noticed that someone was directed to my website from a google search for that exact phrase, “does a beneficiary designation trump a will?” Hmmmm . . . if people are asking the question, sounds like a good thing to address in a blog post.
So, here you go. Yes.
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That of course is the short answer. Here is a little more detail. Beneficiary designations are commonly used for life insurance and retirement accounts. They designate who you want to receive the benefits of the policy or account upon your death. In most cases I see that the spouse is designated as the primary beneficiary (first person designated) and the children (in equal shares) are designated as the contingent beneficiaries (basically, the backups), that is if they even named contingent beneficiaries. There are a many considerations that go into a beneficiary designation, however I will save those for a future post.
Beneficiary designations are a means of non-probate transfer – they bypass the probate court process when someone dies. Because they bypass probate, they are not subject to Michigan’s intestacy distribution laws (the laws that determine who gets what) or what a person’s Will says (the Will serves as a “roadmap” for the probate process). So do they “trump” a will? I don’t know that I would say that . . . it’s more like they thumb their noses at the will and do what they please.
October 2, 2010 at 3:15 pm
You state, “in most cases” the spouse is usually the primary beneficiary. What if a beneficiary was designated prior to marriage? Does a Community Property State negate that designation, and recognize the spouse as primary?
October 2, 2010 at 6:43 pm
Chuck, thank you for your questions. Being in Michigan which is not a community property state, I’m not familiar with community property law and how that would or would not affect beneficiary designations. If you are comfortable sharing what state you live in, I can check with a colleague in that state and/or put you in touch with them.
October 3, 2010 at 9:11 pm
Thank you, I am in Arizona.
October 7, 2010 at 5:16 am
Chuck, I emailed you contact information for a colleague of mine in Arizona. I hope it helps. Thank you again for your comment.
January 7, 2013 at 6:14 pm
I live in Arizona and I’ve been married for 18 years. We have a special needs daughter which makes us codependent o(no support from either side of the of the famil . My husband has another daughter outside our relationship and prior to our marriage who does not respect me. I do not wish to include her in my will/trust. How do I setu a living will and trust without my husband being the trustee or having the ability to change my will? I am expecting to receive a big inheritance and plan to transfer it directly to my will. How do I set this up so that my wishes Trump Arizona community property laws and are granted should I proceed him in death?
January 20, 2013 at 1:27 pm
Hi Natalie. Thank you for your comment – I hope you found the blog post helpful. Unfortunately, I won’t be much help on this one as much of the law covering your questions is different among the states. I’m only familiar with and licensed to practice Michigan law. You would need to talk with an Arizona estate planning attorney to get your questions answered and planning completed. You will likely find a good one here: http://www.estateplanning.com/members/ I’m sorry I couldn’t be more help. I wish you the best.