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March 21, 2018


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Jennifer Hendricks

Isn't the point of Kennedy's question that paying regular premiums after the divorce would mean the policy owner was reminded/aware of the policy, suggesting that he meant to keep it in effect for the benefit of the ex-spouse? (As opposed to a policy on which the premiums had all been paid up-front, so it's possible the owner just forgot entirely.) It's one thing to forget to change the beneficiary on a retirement account, which you expect to use yourself; it's another to keep paying for a policy that exists only to benefit that other person.

The difference is probably not dispositive of the constitutional question, but it's the sort of factual context that ought to bear on the reasoning of a common law judge and that the lawyer should have known.

Anthony Gaughan

That's a great point, Jennifer. I think you are absolutely right. My apologies to Justice Kennedy! The question was a good one. Thanks so much for pointing that out.

Anthony Gaughan

One other interesting point I should add is that in the trial pleadings, Melin (the former spouse) alleged that Sveen (the policyholder) made an oral promise to continue to designate Melin as the primary beneficiary on the policy after their divorce, and to continue paying the premiums. Here's the relevant passage from paragraph 21 of Melin's Cross Claim in the district court interpleader action:

"[A]fter the dissolution of their marriage, Mark Sveen and Kaye Melin entered into an oral contract relating to the division of marital property. They expressly agreed that Mark Sveen would continue to pay all of the Policy's premiums and Kaye Melin would maintain her status as her primary beneficiary in return for agreement to the property division as stated in the divorce decree."

Nevertheless, the district court ruled for the children (citing Minnesota's revocation-upon-divorce statute and holding that Melin's allegation of an oral agreement was legally insufficient to overcome the statute). Also, despite Justice Kennedy's question at the beginning of oral argument, no one else pursued the issue, and the word "premium" does not appear again in the rest of the transcript.

Anyhow, it's quite interesting. Thanks again so much for your comment, Jennifer!

Jack Chin


I might argue, if I were counsel to the right party, that as all persons are presumed to know the law, continued payment of premiums after the law had changed, that is, payments under the new regime, demonstrates that there is no retroactivity issue. The policyholder made an election. And of course all people can protect themselves, if they actually have an agreement, by filing new beneficiary designations favoring the former spouse, or by putting agreements to continue insurance in writing.

This is partially tongue in cheek, because I do not endorse the ignorance of the law is no excuse maxim, but given that it lives, this seems a reasonable application.


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