Thursday, March 6, 2014
Justin 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.