[abbagale]

I live in Alabama. My common law husband of 15 years is recently deceased. His mother was named as beneficiary on his 401k. In 1998 we changed beneficiary on life insurance to my name and thought we changed beneficiary on the 401k. I have a legal notorized form letter saying we entered into a marital relationship. I as well as my children have been on his health insurance for many years. We always held ourselves out as husband and wife. We received mail at the same address and I even receive mail with his last name. I believe due to some error in his office, that the beneficiary to the 401k was never changed from his mother to me but don't know how to prove it. Do I have any legal rights to this money? Can I contest to the beneficiary?

[George_1950]

Welcome to AMHD. You may have something to go on. Did your husband have a will?

[abbagale]

No. He died intestate.

[George_1950]

Check this: "If you are married, federal law says your spouse is automatically the beneficiary of your 401k or other pension plan - period. You should still fill out the beneficiary form with your spouse's name, for the record.

"If you want to name a beneficiary who is someone other than your spouse, your spouse must sign a waiver. The waiver MUST be in writing."
and: "If you are single when you die, your account will go to whomever you named as a beneficiary. If you have not named anyone, the account will go to your estate.

"Single parents, take note! You may have named your child or children as beneficiaries for your 401k plan. You may want to keep this arrangement even if you remarry - perhaps your children would need the money more than your new spouse would. But remember, once you remarry your spouse will automatically take precedence over your children as beneficiary of your account. The form naming your children as beneficiaries is not valid unless your spouse signs a waiver."
401khelpcenter.com - Naming a Beneficiary In Your 401k

[abbagale]

Thank you for the info. Maybe I have a chance to what I feel like is rightfully mine. Thanks.

[JudyKayTee]

To be common law in Alabama it is more than just living together (which OP hopefully already knows):

"Generally, there are four requirements for a valid common-law marriage. Just living together isn't enough to validate a common-law marriage.

Requirement One:
You must live together.

Requirement Two:
You must present yourselves to others as a married couple. Some ways of doing this are by using the same last name, referring to one another as husband or wife, and filing a joint tax return.

Requirement Three:
Although the time frame is not defined, you have to be together for a significant period of time.

Requirement Four:
You must intend to be married.

In the U.S., the agreement by every state to recognize as valid a common-law marriage that was recognized in another state has been challenged by many states creating state laws not recognizing same sex marriages valid in other locales. It is best to consult an attorney to make sure your common-law marriage is recognized in the state where you are currently residing.

Note:
The Social Security Administration will only recognize your common-law marriage if the state where you reside recognizes your common-law marriage.
To make sure that you would be eligible for survivor benefits, you need to go to a SSA office and fill out forms, provide statements from two blood relatives, and provide supporting evidence of your common-law relationship. "

[abbagale]

My attorney says I do have a common law marriage in the state of Alabama and I am entitled to the 401k. I have sent letters to the former employee of my deceased husband and verbally talked to administrators to file a claim. They will not tell me if money has already been disbursed to his mother. What now? How long should I give them to respond?

[George_1950]

You haven't mentioned - and no one has asked about - your husband's estate. Life insurance, as you know, passes outside the estate unless the 'estate' is the beneficiary. I believe you will have to apply to administer your husband's estate; did he leave a will? I'm guessing he didn't. The employer will be within its rights to deny your claim until you have a judicial determination that you were married.

[abbagale]

Thanks for your response. And no, he did not have a will. Since he didn't have a large estate I was hoping to avoid probate. Looks as if that might be the case though. How does one get judicial determination of common law marriage? Is it a long process?

[George_1950]

Apply to the probate court to administer his estate. The application asks for a list of heirs and property. As administrator, you will have to prepare an inventory; one item to list on the inventory is the 401k. I would send a 'courstesy copy' of the application to the administrator of the 401k. At some point along the way, you may have to prove that you are a common law spouse. Or, it may be that everything will just fall in place for you by virtue of having no objections from family.

[George_1950]

Check this:
ADMINISTRATION OF AN INTESTATE ESTATE


WHAT HAPPENS TO MY PROPERTY IF I DO NOT WRITE A WILL?



If someone dies without writing a Will, they have died intestate. Each state has laws governing the distribution of property when a person dies intestate, and most laws are generally the same. The laws of Alabama are shown below, but you should remember that these laws may not apply if the deceased was not a resident of Alabama, or if the property is located in another state. In this list, “issue” means all of the people who have descended from the decedent. This includes children (both natural and adopted), grandchildren (both natural and adopted), great grandchildren, and so on.



1. Property going to the surviving spouse:

a. entire estate if no surviving issue or parents of decedent;

b. first $100,000, plus ½ of balance of estate if there is no surviving issue but there is surviving parent(s);

c. first $50,000, plus ½ of balance of estate if there are surviving issue all of whom are also issue of surviving spouse, or;

d. ½ of estate if there are surviving issue who are not issue of the surviving spouse.

2. Property not going to surviving spouse:



If there is no surviving spouse, or there is property left after the spouse receives his or her share, it passes under the following priority: All of the property passes to the issue, unless there are none. If none, all passes to the parents. If neither parent is living, the estate passes to siblings, and so on under this priority:



a. issue

b. parents

c. brothers and sisters

d. grandparents

e. aunts and uncles

f. cousins





STEPS IN PROBATE OF AN ESTATE:



1. Petition filed

2. Take immediate control of the estate

3. Inventory of the estate within 2 months

4. Bond, equal to the aggregate capital value of the property of the estate, plus one year's estimated income from the estate

5. Notice must be given to all heirs

6. Letters of Testamentary granted

7. Notice to file claims must be published once a week for 3 weeks and individual notice given to anyone known to have a claim against the deceased

8. Claims must be filed generally within 6 months

9. Generally the estate cannot be divided until all claims and expenses have been paid which is at least 6 months

10. Court must approve attorney's fees
ESTATES IN ALABAMA
Remember, you are alleging to be the common law spouse; you may be required to offer proof, because you do not have a marriage certificate.

[abbagale]

This was good useful info. Thanks so much.

[babylankster]

Welcome to AMHD. You may have something to go on. Did your husband have a will?

No he didn't

[babylankster]

Check this: "If you are married, federal law says your spouse is automatically the beneficiary of your 401k or other pension plan - period. You should still fill out the beneficiary form with your spouse's name, for the record.

"If you want to name a beneficiary who is someone other than your spouse, your spouse must sign a waiver. The waiver MUST be in writing."
and: "If you are single when you die, your account will go to whomever you named as a beneficiary. If you have not named anyone, the account will go to your estate.

"Single parents, take note! You may have named your child or children as beneficiaries for your 401k plan. You may want to keep this arrangement even if you remarry - perhaps your children would need the money more than your new spouse would. But remember, once you remarry your spouse will automatically take precedence over your children as beneficiary of your account. The form naming your children as beneficiaries is not valid unless your spouse signs a waiver."
401khelpcenter.com - Naming a Beneficiary In Your 401k

So how do I go about claiming it?

[babylankster]

Check this:
ADMINISTRATION OF AN INTESTATE ESTATE


WHAT HAPPENS TO MY PROPERTY IF I DO NOT WRITE A WILL?



If someone dies without writing a Will, they have died intestate. Each state has laws governing the distribution of property when a person dies intestate, and most laws are generally the same. The laws of Alabama are shown below, but you should remember that these laws may not apply if the deceased was not a resident of Alabama, or if the property is located in another state. In this list, “issue” means all of the people who have descended from the decedent. This includes children (both natural and adopted), grandchildren (both natural and adopted), great grandchildren, and so on.



1. Property going to the surviving spouse:

a. entire estate if no surviving issue or parents of decedent;

b. first $100,000, plus ½ of balance of estate if there is no surviving issue but there is surviving parent(s);

c. first $50,000, plus ½ of balance of estate if there are surviving issue all of whom are also issue of surviving spouse, or;

d. ½ of estate if there are surviving issue who are not issue of the surviving spouse.

2. Property not going to surviving spouse:



If there is no surviving spouse, or there is property left after the spouse receives his or her share, it passes under the following priority: All of the property passes to the issue, unless there are none. If none, all passes to the parents. If neither parent is living, the estate passes to siblings, and so on under this priority:



a. issue

b. parents

c. brothers and sisters

d. grandparents

e. aunts and uncles

f. cousins





STEPS IN PROBATE OF AN ESTATE:



1. Petition filed

2. Take immediate control of the estate

3. Inventory of the estate within 2 months

4. Bond, equal to the aggregate capital value of the property of the estate, plus one year’s estimated income from the estate

5. Notice must be given to all heirs

6. Letters of Testamentary granted

7. Notice to file claims must be published once a week for 3 weeks and individual notice given to anyone known to have a claim against the deceased

8. Claims must be filed generally within 6 months

9. Generally the estate cannot be divided until all claims and expenses have been paid which is at least 6 months

10. Court must approve attorney’s fees
ESTATES IN ALABAMA
Remember, you are alleging to be the common law spouse; you may be required to offer proof, because you do not have a marriage certificate.

I live in Califorina And all he would have had as far as money was those 401K,s

[AK lawyer]

Apply to the probate court to administer his estate. ... I would send a 'courstesy copy' of the application to the administrator of the 401k. At some point along the way, you may have to prove that you are a common law spouse. Or, it may be that everything will just fall in place for you by virtue of having no objections from family.

You should also prepare the order for the probate judge to sign, appointing you as administrator. The order should clearly recite that you are being appointed because you were decedent's common law wife.

[JUAKEISHIA]

I have a friend who is 63 years old and common law husband was 69. He died recently and the kids that were astranged from him have come into her house and took over. Before he died he gave her his ATM card and the PIN, this account had over 20,000 dollars in it, but the kids went down to the bank without her and tried to get the money, but he had no beneficial on the money, so the bank just froze it. My friend has been with him for 23 years and have been living as husband and wife for 11 years. She says that he has stocks and bonds, but his brother and children are acting as if none of this exist, but she knows that it does. He made a will, but did not get a chance to sign it. I wanted to know what advice does she need in order to get what seems to be rightfully hers? The children were astranged, because the daughter had stolen over 10,000 dollars from the deceased some years back. He wanted to prosecute her but her name was on the account at that time, so he could not do much about it. He did remove her name from that account. Now she has moved into the house with my friend without her consent. She says that they have taken over the place. Rearranging furniture, taken carpet up, already bringing men and women in and out the house without her consent. The daughter was not welcome in the home as long as he was living. The son and daughter did not take care of him, only my friend. The did not even come down to help my friend when he became deathly ill. My friend was their with him until the end. I just want to know what can she do to fix this problem?

[JudyKayTee]

Unless your friend is in one of the very few States that recognized common law marriage she has absolutely no rights to anything he owned. He should, of course, have protected her. I preach this all the time to friends of mine who choose to live together without marriage.

She certainly has a claim to things acquired jointly and to joint accounts but no claim to anything in his name alone.

Estranged or not, his kids do have the right to inherit UNLESS "he" had a Will, trust, some other agreement.

Maybe she is rightfully/morally entitled to a share but legally she is not.

[sassykat60]

I Needs answers? My Husband died Sept 19,2011. His Mother said he had no will. He was very Ill,due to lung Cancer,stage 4,we were short of 7 weeks to our 1 year anniversary.We married Nov 10,2010. He said his oldest daughter was the beneficiary,he told her if he passed before our 1 year anniversary,to split his Insurance money 3 ways! Wasn't much,60,000,his daughter had gone on a cruise during the holiday with her 3 kids and Boyfriend! Where she got the money? Should I go to the County Court House and see if I'm on his Will? He had no assets,nothing... I Married him Because I LOVED him! Believe me wasn't the money! We were together a little over 3 yrs! Do I have ANY rights?

[JudyKayTee]

Depending on the State in which you live you have a right to inherit based on certain of his assets. It's an "automatic" inheritance, not controlled by his Will. In fact, State Law trumps the Will.

Insurance goes to the DESIGNATED BENEFICIARY, outside the Will. If his daughter(s) was the beneficiary, she inherits the life insurance. You have no right to the proceeds.