We Filed a Brief to the Supreme Court of the United States Fighting for Women’s Economic Security

Attorneys at the Women’s Law Project have filed an amicus curiae (“friend of the court”) brief to the Supreme Court of the United States in a case that will have significant impact on American women’s economic security.

At issue in the case, Carolyn Lazer v. Mark G. Kroncke, is the constitutionality of retroactively applying obscure state laws that automatically revoke a decedent’s designation of a former spouse as a beneficiary of assets such as an IRA or life insurance.

These “revocation-on-divorce” statutes have been passed in 29 states. Of those states, 17 have also adopted a retroactivity clause. (Pennsylvania does not have this statute.)

In states with these statutes, the law blatantly disregards and usurps the explicit written wishes of the person who has died. The law assumes he or she must have simply forgotten to remove a former spouse as a beneficiary of these assets. In states with the retroactivity clause, the statutes apply even to assets that designated a beneficiary prior to the statute passing into law.

Federal courts of appeals and state supreme courts have split on whether retroactive application of these state statutes violates the contract clause of the U.S.  Constitution.

In our brief, written on behalf of ourselves and six other organizations and filed by attorneys at Boies Schiller Flexner LLP, we argue that these laws statutorily mandate a disadvantage that affects millions of American women, who may automatically lose their status as beneficiaries of their former husbands’ retirement accounts and life insurance policies, despite wishes of the deceased.

The premise underlying these bills is wrong. The courts already recognize that a man may very well intend to keep a former spouse as a beneficiary of his IRA, especially if she (or he) is the primary caretaker of their children. Automatically overriding the explicit wishes of the deceased person may have negative affect on the former couples’ children. We argue that at the very least, the Constitution requires a case-by-case analysis of the divorcing spouses’ intent before a formal beneficiary designation can be retroactively overridden by the state.

Women are already disadvantaged in retirement. According to a 2011 study, 73 percent more women than men over 65 lived in poverty. More than 20 percent of divorced women live in poverty, with some estimates as high as 37 percent.

The inequality of women’s financial status in retirement stems in part from inequality during working years. Beyond pregnancy and pay discrimination, women generally spend more time out of the workforce than men to care for children and other family members. Sometimes, they are forced out of the job market for a time altogether, due to lack of paid leave and childcare.

As a result, men typically have much more money saved in IRA accounts and life insurance coverage. Meanwhile, following divorce, women are more likely to maintain primary or sole custody of children, thereby creating greater financial need.

Additionally, the premise of retroactively applying these statues is illogical. These statutes intervene based on an assumption that a person will be inattentive to updating their IRA and life insurance designees in the wake of divorce, but also assume that the same person would know about an obscure statute, retroactively applied.

The six other amici on the brief are American Association of University Women (AAUW), Women’s Institute for a Secure Retirement (WISER), National Partnership for Women & Families, California Women’s Law Center (CWLC), Legal Voice, and Southwest Women’s Law Center.

Read the amicus curiae brief here.

The Women’s Law Project is a public interest law center in Pennsylvania devoted to advancing the rights of women and girls.

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About womenslawproject

The Women's Law Project creates a more just and equitable society by advancing the rights and status of all women throughout their lives. To this end, we engage in high-impact litigation, advocacy, and education.
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