The Financial Rights of First Wives

When a divorced breadwinner remarries, his first wife could lose out.

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Spoiler alert: The following post reveals plot twists in Season 3 of Weeds.

In Season 3 of Weeds, recently released on DVD, Mary-Louise Parker's character inherits life insurance and pension payouts from her husband, who died suddenly. Even though their marriage, which was kept a secret, lasted only a short period, the money went to Parker's Nancy Botwin, and not his ex-wife of 11 years.

This development struck me—and the ex-wife—as unfair. Why does a six-month marriage trump more than a decade of shared living (and a marriage that created a son)? Shouldn't that ex-wife get at least some of the money?

I took those questions to a couple lawyers who specialize in such affairs. John Olivieri, a partner at law firm White & Case's private clients practice, says he and his wife chuckled over the show's portrayal of the law. "The show was a little bit false," he says, because individuals usually select their life insurance beneficiary. It would have been easy for the husband on the show to select his son or ex-spouse as a beneficiary, although companies often have defaults—such as a spouse—if no one is selected. The same is true for pensions. (With 401(k)'s, however, spouses have an "absolute right" to be named the beneficiary and must be informed if the money is going elsewhere, says Olivieri.)

Those complications are why Marilyn Chinitz, matrimonial litigator and partner at Blank Rome, recommends working out life insurance and pension logistics during the divorce settlement. For example, the settlement might specify that the ex-spouse is entitled to a portion of the life insurance payout. That way, Chinitz says, all of the questions about where assets go at death are resolved at the time of the divorce.

Sometimes, Olivieri adds, divorcing spouses are required to purchase additional life insurance for the benefit of the divorced spouse or children. "It's very common to be required to maintain a certain amount of insurance and to have it decrease over time," he adds.

There is one glimmer of good news for ex-wives and ex-husbands, however. Social Security benefits do get paid out to surviving ex-spouses, as long as the marriage lasted at least 10 years.