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Beneficial Interest Designation on Retirement Account Trumped Marital Settlement Agreement Entitling Ex-Wife to Proceeds upon Ex-Husband’s Deathand More
Beneficial Interest Designation on Retirement Account Trumped Marital Settlement Agreement Entitling Ex-Wife to Retirement Account Proceeds upon Ex-Husband’s Death
In Mowen v. Kelly, 2025 IL App 4th 240906, the Fourth District Appellate Court reversed a trial court’s order that had granted summary judgment in favor of a decedent ex-husband’s father, who sought to invalidate the expectancy interest of his deceased son’s ex-wife with respect to the ex-husband’s retirement accounts. The ex-husband had designated his ex-wife as the primary beneficiary and his father as the secondary beneficiary before the divorce. The ex-husband never changed the beneficiary designations after the divorce. The father argued that the judgment for dissolution of marriage implicitly revoked the ex-wife’s beneficiary designation. The appellate court reversed, holding that there was no termination of the ex-wife’s expectancy interest in the retirement accounts. The language of the marital settlement agreement (MSA) awarded the ex-husband his retirement accounts as his sole and separate property but was silent as to the ex-wife’s expectancy or beneficial interest in such accounts. Further, being awarded property in a judgment for dissolution of marriage means gaining the ability to control who will be the new owner after one dies. The court distinguished the case at bar from Herbert v. Cunningham, 2018 IL App (1st) 172135, ¶46, 129 N.E.3d 539, 432 Ill.Dec. 321, which dealt with an MSA that contained specific language “waiv[ing] . . . all property rights and claims which he or she now has or may hereafter have.” [Emphasis in original.] 2025 IL App 4th 240906 at ¶20. Such language in the Herbert MSA extinguished the ex-wife’s expectancy interest in the ex-husband’s 401(k), which was akin to a property right or a claim that the ex-wife “may hereafter have.” [Emphasis in original.] Id. This case underscores the importance of executing revised beneficiary designations post-divorce or including language in the MSA that both parties waive any property rights and claims that either party has at the time of the divorce or that may arise thereafter.
Trial Court’s Ruling Denying Ex-Husband’s Petition To Terminate Maintenance on Basis of Cohabitation Affirmed
The First District Appellate Court affirmed a trial court’s denial of an ex-husband’s amended motion to terminate maintenance, finding that the ex-wife was not in a de facto marriage pursuant to §510(c) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 705 ILCS 5/510(c). In re Marriage of Culm, 2025 IL App (1st) 240566.Applying the Herrin factors originating from In re Marriage of Herrin, 262 Ill.App.3d 573, 575, 634 N.E.2d 1168, 199 Ill.Dec. 814 (4th Dist. 1994), while the ex-wife and her boyfriend maintained a lengthy romantic dating relationship, they never lived together; they maintained separate finances; and their actions lacked future planning indicative of a marital relationship. The court noted that occasional financial transfers, shared travel, and periodic overnight stays were insufficient to establish a de facto marriage. Because the ex-wife and her boyfriend were not cohabitating within the “common meaning” of the term, §510(c) of the IMDMA did not apply. 2025 IL App (1st) 240566 at ¶100. In addition, four of the six Herrin factors weighed against de factomarriage. Id. Therefore, the trial court’s ruling was not against the manifest weight of the evidence.
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