Marquee Background
Marquee Background

Offit Kurman Blogs

Litigation

Creative Lawyering – Property Settlement Agreement as Written Assignment (a Supreme update)

July 25, 2023

By Thomas W. Repczynski

A beneficiary’s interest in a life insurance policy is only as protected as the written assignment securing the interest with the policy issuer.

In the right circumstances, a Property Settlement Agreement (PSA) – or other similar agreement! – can double as any number of other useful legal documents. I’ve previously written of trial court successes where PSAs have doubled as a real property deed and, in a more recent case, as an “assignment” (serving to transfer an interest in life insurance policy proceeds). Over the pandemic, I left readers hanging by failing to share the appellate outcome on the “assignment” issue.

The Virginia Supreme Court took up a case of mine involving a divorcee whose deceased ex-spouse failed to honor a consensually court-ordered life insurance commitment. Essentially, the divorcing husband had promised to maintain life insurance for the benefit of his soon-to-be ex-wife and later reneged by changing the policy beneficiary designation (a not uncommon occurrence, unfortunately) shortly before committing suicide. The trial court had ruled favorably for the surviving ex-spouse (our client) but had done so on questionable legal grounds – relying on a definition of “creditor,” which I had not even argued to the Court (with good reasons, it turns out!).

Suffice it to say, the circumstances in the case required a “written assignment” for the proceeds of the life insurance policy to be rightfully owed to the surviving ex-spouse. The assignment requirement stemmed not from the former couple’s divorce documentation but rather from the contractual arrangement with the life insurance company issuing the policy. Additional details of the case aren’t nearly as significant as the rule of law on which the Supreme Court chose to uphold the trial court’s decision and the impact it ought to have on anyone expecting to benefit from the life insurance policy of another.

It turns out the Supreme Court agreed that the language of the couple’s PSA satisfied all the requirements of an assignment sufficient to have effected a transfer of the policyholder’s interest in the proceeds of the policy to his ex-spouse. The appellate victory was sweet – not going to lie. Our client’s win, however, proved a cautionary tale for all future would-be policy beneficiaries (not to mention their divorce attorneys, financial planners, and estate planning counsel!) facing similar circumstances. Our client had lucked out inasmuch as her vengeful ex-spouse hadn’t compounded his in-your-face beneficiary re-designation by pledging or otherwise re-assigning the policy to another in exchange for a financial interest of some kind. According to the Supreme Court, had he done so, he would have successfully cut his ex-spouse out of a substantial portion of the financial consideration negotiated for during the parties’ divorce.

Because the PSA/assignment document was not provided to and accepted as an assignment by the insurance company (in lieu of the company’s own form assignment document) prior to the policy owner’s death, any subsequent assignment properly documented with the insurance company would have superseded the PSA’s operative language. In essence, the reach of a PSA’s operative assignment impact only extends as far as the parties to the agreement unless and until either the policy issuer becomes a party to the agreement or the policy owner opts to reassign some or all the same interest in the proceeds.

The rationale of the Court’s decision might easily be extended beyond the divorce context to anyone with an expectancy in policy proceeds. I’m speaking especially in this context to anyone who might consider extending credit with the promise of repayment to be backed by policy proceeds. Failing to insist on a written assignment on the insurer’s form and confirmation of the insurer’s acceptance of the assignment unnecessarily affords an unscrupulous borrower the ability to leave you completely unprotected. I welcome opportunities to provide guidance prior to leaving oneself or one’s client unnecessarily exposed and/or counsel when looking to extricate from unanticipated consequences after having failed to protect against them beforehand.

Categories: Litigation

Related People

Related Services

  • Posts
  • About
  • Subscribe

Firm Highlights

  • Events
    MACFO's Inside Successful CEO & CFO Partnerships
    Please join us on September 18 for an event that’s sure to be a home run! ***We will lead off by interviewing our Spotlight Speaker Series guest, Baltimore Orioles CFO, Darline Llamas Llopis.*** After, we will ask ourselves, what separates great companies from good ones? We believe that more often than not, it is the strength of the partnership between the CEO and CFO that matters, so we are bringing you three CEO/CFO leadership teams to learn from. The Associated: Jewish Federation of Baltimore – Andrew Cushnir and Sam Klein Canusa Paper & Packaging – Mike Walter and Vince Salamone Secom, LLC – Toni Toomey and Mourad Awad Join us for an exclusive executive briefing – three tandem presentations followed by a panel discussion - featuring CEOs and CFOs from different but leading organizations as they share candid insights into building trust, navigating difficult decisions, driving strategic growth, and leading through today's business challenges. You'll hear firsthand how these executive teams navigate conflict, align on priorities, and build high-performing organizations. Whether you're a CFO, controller, finance executive, or an aspiring business leader, you'll leave with practical ideas and fresh perspectives you can apply immediately. Meet Our Speakers: Darline Llamas Llopis • Orioles  Chief Financial Officer Darline Llamas Llopis is in her second season with the Orioles as Chief Financial Officer (CFO). Prior to joining the Orioles, Llamas Llopis spent four seasons with the Miami Dolphins, Hard Rock Stadium, and the F1 Miami Grand Prix as Vice President of Finance and Retail. In this capacity, she managed the finance, accounting, payroll, account payables, procurement and merchandise operations for the team and race. She also previously served for four years as the Director of Finance and Controller at the Los Angeles Rams. Llamas Llopis started her career in public accounting with Ernst & Young and PricewaterhouseCoopers as a member of the Commercial Real Estate practice.  Llamas Llopis completed her MBA at UCLA Anderson School of Management and received her Master of Accountancy from the University of Southern California (USC) where she also graduated cum laude with an undergraduate degree in business. She is a member of the American Institute of Certified Public Accountants (CPA) and is an active CPA. She resides in Baltimore with her husband, Devin, and their son, Santiago. Andrew Cushnir • The Associated: Jewish Federation of Baltimore   President & Chief Executive Officer Andrew Cushnir is the President and Chief Executive Officer of The Associated, having started in the role in May 2024. He is the eighth person to serve in this role since The Associated’s founding over 100 years ago. Andrew brings a wealth of experience and a profound dedication to strengthening and enriching the Jewish community. His journey within the Jewish Federation system began as a passionate lay leader and volunteer before he transitioned into serving as a professional. He worked for the Jewish Federation of Los Angeles for twenty years, including in the roles of Chief Planning and Program Officer and Chief Development Officer. During this time, Andrew played a crucial role in reshaping the allocation process and fostering a culture of collaboration and partnership and he also led all annual, project, and emergency fundraising, as well as planned giving efforts. As a member of the Federation’s executive team, he also addressed complex community and organizational issues. Andrew and his wife Sharon Spira-Cushnir, a seasoned nonprofit human services executive, are the proud parents of two children in their early 20s. Sam Klein • The Associated: Jewish Federation of Baltimore  Chief Financial Officer Sam Klein is a seasoned nonprofit finance executive with nearly two decades of experience leading financial strategy, operations, budgeting, and organizational transformation for mission-driven institutions. As Chief Financial Officer of The Associated: Jewish Federation of Baltimore, he oversees the organization's financial operations, investment stewardship, budgeting processes, risk management, and long-term financial planning, helping advance the Federation's mission of strengthening and supporting Jewish life in Baltimore, Israel, and around the world. Throughout his career, Sam has been recognized for his ability to align financial stewardship with organizational mission, drive process improvements, implement technology solutions, and build high-performing teams. His expertise includes nonprofit finance, strategic planning, budgeting and forecasting, investment oversight, financial reporting, compliance, operational excellence, and organizational growth. Sam earned a Master of Business Administration in Finance from the Johns Hopkins Carey Business School and a Bachelor of Science in Finance and Marketing from Syracuse University. Mike Walter • Canusa's Paper & Packaging Chief Executive Officer As Chief Executive Officer of Canusa Paper & Packaging (CPP), Mike Walter leads one of the world's leading independent international brokerages of containerboard and packaging papers. Mike recently celebrated his 20th anniversary with Canusa and has overseen a doubling of the business in the past five years. Mike’s first role at Canusa was an intern before moving into a risk management role. Progressive promotions over the years led Mike to serve as Canusa's Chief Operating Officer and General Counsel, as well as General Counsel for its affiliate, Canusa Hershman before becoming the CPP CEO on January 1st, 2025. Mike graduated with a B.S. in Commerce & Engineering from Drexel University before earning his J.D. at the University of Baltimore’s School of Law. Vince Salamone • Canusa's Paper & Packaging Chief Financial Officer Vince Salamone serves as Chief Financial Officer of Canusa Paper & Packaging, overseeing the company's global financial strategy and overall operations, risk management, and other shared services. Since joining Canusa in 2018, Vince has advanced from Corporate Controller to CFO. Prior to Canusa, Vince held senior accounting and financial reporting roles at modular space leader Algeco Scotsman and supply chain real estate operator Realterm, bringing extensive expertise in finance and corporate accounting. He began his career with Deloitte, providing assurance services to clients in aerospace and defense, software, and manufacturing throughout the Mid-Atlantic. Vince attended the University of Maryland and Towson University, earning his B.S. in Accounting in 2012 and his CPA license in 2014. Toni Toomey • Secom, LLC Chief Executive Officer As Chief Executive Officer of Secom, LLC, Toni Toomey leads the company's external vision, culture, and strategic growth. A Howard County native, Toni brings an entrepreneurial spirit and a people-first philosophy to one of Maryland's leading commercial security firms — championing internal promotion and a culture of integrity. Toni serves on the Board of Directors for Maryland Tech Council, the Howard County Chamber, as well as the Steering Committee for the Maryland Rural Tech Network. Mourad Awad • Secom, LLC Chief Financial Officer As Chief Financial Officer of Secom, LLC, Mourad Awad architects the company’s financial strategy, performance, and value creation. A leader, by example, Mourad believes in empowering people and fostering communication. With 20+ years of leadership across private equity, federal contracting, construction, and infrastructure services, Mourad brings a strategic approach to partnering with Toni – CEO to turn vision into precision execution, delivering exceptional value to Secom customers and sustainable growth for SECOM.  Thank You to Our Sponsors