Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Thursday, March 6, 2014

Article on ERISA's Preemption Provision

LawJustin A. Kesselman (University of Massachusetts Amherest) recently published an article entitled, Can State Law Remedies Revive Statutes Stricken by ERISA's Preemption Provision?ACTEC, Vol. 38, No. 2 and 3 (Fall 2012/Winter 2012).  Provided below is the abstract to the article:

Since the United States Supreme Court's holding in Egelhoff that ERISA preempts state law revocation-on-divorce statutes, courts and legal scholars have attempted to fashion a way to apply the policies of these statutes to effect the presumed intent of an employee not to provide retirement plan benefits to a former spouse. This paper analyzes those efforts and contrasts the statutory remedy of imposing a constructive trust on the recipient of those benefits. In this author's view, the constructive trust is the sounder approach, because it preserves the presumption embedded in ERISA that an ex-spouse's continued presence in the plan documents is an expression of the participant's intent. Although the statutory approach will often produce a similar result, it fundamentally changes the nature of replacing a federal rule that errs on the side of the spouse with a state rule that errs against the spouse, the statutory remedy seems more likely to fall within ERISA's preemptive scope. 


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