tarmon plan sponsored by delta and administered in part by fidelity your honour's the district court improperly dismissed miss crowder's aristocles against elton fidelity for two reasons st while mr crowder by operation of sorry well mr crowder by operation of law automatically became the beneficiary under the plan upon her marriage to mr crowder nothing in the plan nor in a recess or the attorney internal revenue code automatically divested her of that designation upon their divorce yes are there any cases either way addressing whether or not a an incorrect and premature designation like the one in this case is revived or not point in terms of the facts but it's a similar situation under kennedy the prior spouse lost all right suppose under the plan upon divorce according to a lower  but the supreme court said that that did not divest her beneficiary designation that then is your question yes i mean there i've been i've done a fair amount of research in this case and there are a lot of state statutes that try to deal with this particularly circumstance where  spouse has to agree to be divest it of beneficiary status and what happens when there's a divorce or a dance or some other life event which affects that waiver or lack of waiver but mr crowder was married only once to miss crowder and prior to their marriage he did not designate a beneficiary under the plan and he didn't do so when you married ms crowder prior to the divorce he attempted to designate his sister as his beneficiary m he did a written beneficiary for his staff her rights to the extent she's trying to write only because the plan said she will automatically be the but i need you to do it within the plan the time that during the marriage well the marriage ended so help me with i don't even know i have to get to that form he changed whatever forget about what he did for the sister before he died whether that provides anywhere help me rather with just a simple threshold issue after center only right came through that plan language that's what i've identified the it's our it's our reading of the plan document that during such marriage as it as it's written in the plan document then goes on to address how he could change beneficiary during the marriage so it states that unless the participant waive the spouse of designation and in the case another person on a form satisfactory to the committee and the spouse gets written consent the spouse is the beneficiary during the marriage now following the marriage this plan a silent as to any kind of revocation of that right after the marriage there is no separate term in the plan for the beneficiary and a beneficiary by marriage or something along those lines so beneficiaries  agrees she was already they were divorced well without remarriage or a quadro or a valid designation of a different beneficiary she remain the beneficiary perhaps you know we can't obviously we can't obviously get into the the intent of the the plan construed it was wrong arbitrary and capricious as well as judge or to mention many states have automatic revocation language and as i mentioned plans also put automatic revocation language there's no such language in here that automatically revoke her status as a beneficiary upon the divorce so it's because it's beholden upon the plan participant to make that change impact he attempted to make a change prior to the divorce being final  that change wasn't valid and then he never made he never ratified that change following the divorce so she remained a beneficiary in fact when i don't get into georgia law this is georgia right well this is a this is to be preempted by arista so right right right they were married in georgia right yes yes ok ok but typify to get get after divorce in georgia went to state law you'd and i think you've answered my question yeah he absolutely can but he were maintaining he did not and just to clarify the summary plan description which there is also requires to summarize the plan and sort of plain english for the participants it states if you are married your spouse is automatically a beneficiary it's important to keep your beneficiary information current events such as divorce may create a need to change a beneficiary designation now i'm not sure why that would be in the s p d if the plan automatically revoked her right as beneficiary upon the divorce clearly didn't you know the our contention is that the phrase during the marriage as used in section fourteen point zero three of the plan serves two purposes and st it refers to the automatic spousal designation required by iris as we've discussed and nd it puts an express limitation on a participant's ability take away that automatic designation during the marriage without the spouse's written consent so that incorporates the anti alienation requirements of ressa and to the extent that it meant anything else the phrase is ambiguous all right mr sharma let me ask you another question to follow up on judge holes inquiry yes o if if mr crowder had not attempted a change of beneficiary at all he had just not filled out anything during his life he's divorced from your client and then he dies ten years later who's the beneficiary well here on or under under the plan she would still be the beneficiary how how do you get there because he never changed beneficiary and it wasn't an addict there was no beneficiary except by operation of law during the marriage so once the marriage in who is the beneficiary of none has been actually designated as judge of all indicated without any without any change of beneficiary he meant my client would still be the beneficiary because the the many plans do include that provision but they they did not another another point i'd like to make also is that when the when when mr crowder passed away a few months later there was a call the call log list mrs crowder the ex wife as the beneficiary still has a bad date so fidelity who were administering the benefits for the plan listed miss crowder still as the beneficiary this is four months after mr crowder passed away and then they made some decision based on receiving the divorce decree which i'm not even sure would have any relevance because that's a state a state divorce decree they made the decision to pay the the during my rebuttal if i find anything but regarding that but you know i'm not i'm not sure how that has any relevance given that that's a state law issue a divorce and this is a federal reset which preempts still a beneficiary at the time mr crowder passes away and it's our contention that she has and if there is any to the extent there's any ambiguity there that's construed against self if you drop to the point so i didn't quite get i just didn't quite get to the reach of do share due to claims but i just want to point out that she is able to maintain both a claim for a benefit and a claim for future producer duty at least at the pleading stage under arrest and just  beneficiary then that takes care of that claim is that correct most likely yes your honor i mean because they had no duty to her she's not a bit of fisher i said well she she had a colorable claim as a beneficiary so i the court this is tim mcdonald i'm counsel for all f l e s i thank the court for giving us the opportunity to present argument on this matter this morning i'm going to go through a brief opening and then i'm going to directly address the points from the questions of judge hall and judge jordan before continuing my argument under the terms of the delta family care savings plan and i'm quoting from section fourteen point zero three of the plan if the participant is married then during such marriage the participant spouse shall automatically be the beneficiary that's the end of the quote there is no other time the spouse is automatically the beneficiary under the terms of the plan or the employee retirement income security act which i refer to here after his arrest the key words in that provision as identified by the questions by the panel are crowd or argues that the plan says that during means quote during and after close quote but what's on the libby judge jordan let me ask you the same question i asked mr sharman from a different perspective the his beneficiary designation during his marriage to ms crowder was it effective during the marriage right during the marriage it was ineffect yes right ok are there any cases anywhere talking about whether or not a designation that is ineffective when made gets revived upon divorce or death i am not aware of any your honor if i may we this case never gets to that question and nd although there are no cases the background principles arista would say that that's a determination for the plan to make here's the answer in the long form while there are no cases on it as judge hall identified in her questions even if there was never a card or even if there's a card that's void or even if there's a card that's voidable you still end up with the benefit not going to want to crowder but instead to the personal representative of the state who is someone else as  plaintiff played in the original complaint so if you go to page twenty three of our brief and look at the way that we've laid out that one provision where they add some words to it or if you look at in the record it's to if you do not have a marriage exception you end up going to the personal representative and so in that sense at a planned level we would get there now walking back to the background principles under federal law or is basically set up to allow planned to be structured however they want so long as they do not contravene the restrictions in a recent there is a written restriction that says that such  have a marriage exception but because it has a marriage exception it's not subject to those provisions now let me make one other point here jordan judge jordan based on the argument that is throughout m argument that there's another way they could have done it that's a non sequitur the mere fact that there are two ways you can do something does not mean that the st way is incorrect for example i could make the statement i am presenting an argument before  three united states circuit judges that's true and accurate i could also make the statement there are three united states circuit judges who are on the panel in front of which i make an argument to different sense it gets in the exact same place the language here get you to the exact same place that a revocation language would if you wrote if you wrote it differently i'll note also that the language in this plan is very similar to language in the supreme court's decision in kennedy and so there's no revocation language in that case either and there's no duty for a plan to write it in the way that mr sharman would prefer that they write so to go back to the point on how you work through section fourteen point zero three once there is a divorce the former spouse loses the automatic beneficiary status it's really important that  focus on a word that is ignored by want to crowder and that is automatic the st sentence of fourteen dollars in the plan talks about how you affirmatively designate somebody and then the exception is only their product and it defines two ways the same limitation if the participant is married during such marriage arguably you could eliminate one of those portions of the marriage exception you'd still get to the same place because each means the same thing again are read brief or a twenty three shows that to read the exception the way mr sharman would you need to eliminate one word that is and he had nineteen words to the provision i'm unaware of any authority written now with respect to the legal requirements there is no requirement that this plan words this provision one way or another as i've said before so then the question becomes is there anything in that sentence primarily section fourteen point zero three which would indicate that it's done over wrong and there really isn't anything that would indicate that it's been over wrong so matter of fact i'm not sure that if that draft were presented to me i would take or what because of the clarity of that provision mr sherman made the point that if you go on that marriage exception then has basically an exception to it and that is that the spouse could always agree to waive it that's true but the fact that there's a further exception doesn't mean that is does not mean is in participant is married or that during such marriage does not mean during or after such marriage it's just another provision in the plan that doesn't contradict it at all the macdonald one more one more question from my end what is the provision of the plan that has default provision about where the benefits go if there is no beneficiary in any way shape or form yes your honor they're all combined in section fourteen summary and that can be found in the record i say that there's no background rule in a research that automatically invalidate such a designation so it would be left to the plan terms under the st sentence and in section fourteen three there is no in this plan there is no limitation on when the beneficiary designation needs to be made except that it must be made and submitted on an appropriate form to fidelity before the death of the participant so as a result this plan could have been written differently he could have said we will not accept any beneficiary designations during any marriage could later agree that the state has a pretty good argument the s p would have an argument for under the terms of this plan the beneficiary would win i also believe that you could write a plan that would favor the estate over such a beneficiary if you wanted to it's a plan drafters decision decide is the ex wife is not the proper beneficiary is that all we have to do correct and as a small point your honor at the beginning of this case the representative was named  and never asserted a right to the benefit instead was sued by wanda and resisted the claim that was a motion brought on the original well that he did that or not that you're correct he may have had his own interest and i don't then tell me anything what i need to know is what i have to decide and they only thing i have to decide is the plaintiff here have a claim is that correct and we don't your career with anything else yes your honor i mean that can be a very narrow issue if it is a very narrow issue your honor and very plan specific mr mcdonald thank you so much we appreciate it thank you ok mr sherman you've got your rebuttal thank you your honors just briefly as mr macdonald agree with our reading of the plan the phrase during such marriage modifies the beneficiary to the extent that the participant has to waive the spousal designation and the spouse has to give written consent to the waiver that's what that's the end of that sentence states so that's why during such marriages in there it's basically saying during that during the marriage you can't give away your you know your beneficiary rights and less your spouse c s after the marriage you can do whatever you want but it doesn't change the beneficiary there's no automatic revocation and to the extent that they disagree the fact that the s p d says otherwise gives rise to a claim for future fiduciary duty under mar has been helpful we are in recess until tomorrow morning thank you thank you