LYNN MARTINEZ-OLSON

v.

THE ESTATE OF DAN OLSON

Third District Court of Appeal

State of Florida

Opinion filed September¹, 2021. Not final until disposition of timely filed motion for rehearing.

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No. 3D20-1301 Lower Tribunal No. 17-1825

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Lynn Martinez-Olson,

Appellant,

vs.

The Estate of Dan Olson,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Maria Espinosa Dennis, Judge. Sandy T. Fox, P.A., and Sandy T. Fox, for appellant. Richard A. Schurr, P.A., and Richard A. Schurr and Bonnie M. Sack, for appellee. Before LOGUE, GORDO, and LOBREE, JJ. LOGUE, J.

In this post-dissolution of marriage action, the Estate of Dan Olson

sought to enforce a marital settlement agreement to recover proceeds from

Dan’s retirement savings 401(k) plan that were distributed to Dan’s former

wife, Lynn Martinez-Olson, as the named beneficiary under the plan.

Because Lynn waived any entitlement to her former husband’s 401(k) plan

proceeds under the marital settlement agreement, the Estate is entitled to

bring this post-distribution action against Lynn to enforce the contractual

waiver and to recover those proceeds.

FACTS AND PROCEDURAL HISTORY

Dan Olson and Lynn Martinez married in 1998. Dan worked as a

producer for WSVN⁷ News owned by Sunbeam Television Corporation. Dan

participated in Sunbeam’s retirement savings 401(k) plan which is governed

by the Employee Retirement Income Security Act of 1974 (ERISA), 29

U.S.C. § 1001 et seq. Dan executed a beneficiary designation form, naming

his wife, Lynn, as the first beneficiary and his “living children”¹ as the second

beneficiaries under the 401(k) plan.

In 2017, Dan and Lynn divorced. A final judgment of dissolution of

marriage was entered ratifying a marital settlement agreement

(“Agreement”) drafted by Lynn’s counsel and signed by the former couple.

The Agreement provides, in relevant part:

ARTICLE IX RETIREMENT

9.1 Each party shall receive any and all benefits existing by reason of his or her past, present, or future employment or military service, including but not limited to any profit-sharing plan, retirement plan, Keogh plan, employee stock option plan, 401(k) plan, employee savings plan, military retired pay, accrued unpaid bonuses, or disability plan, whether matured or unmatured, accrued or unaccrued, vested or otherwise, together with all increases thereof, the proceeds therefrom and any other rights related thereto. The other party hereby waives and releases any and all claims or interest therein.

ARTICLE X DIVISION OF OTHER ASSETS AND LIABILITIES . . . .

10.3 Each party shall have exclusive ownership in all items of property that are currently in his or her possession or control, and the other party waives and releases any and all claim or interest in such items.

Dan died two years after the couple finalized their divorce. Prior to his

death, Dan did not change the beneficiary on his 401(k) plan. Dan’s daughter

from a prior marriage, Chelsea Olson, was appointed as personal

representative of his estate. Chelsea and Lynn made competing claims to

the proceeds from Dan’s 401(k) plan. Sunbeam ultimately distributed the

proceeds to Lynn as the named beneficiary in the plan documents pursuant

to ERISA.²

Chelsea Olson, as personal representative of her late father’s estate,

filed a verified motion to enforce the Agreement in the family law division of

the Miami-Dade County Circuit Court. In the motion, Chelsea asserted that

while Sunbeam was required to distribute the 401(k) plan proceeds to Lynn

pursuant to ERISA and the plan documents, Lynn had clearly and

unambiguously waived any and all right, title, and interest she had in the

proceeds. Chelsea further argued that ERISA does not preclude the Estate

from bringing a post-distribution action to enforce the contractual waiver and

to recover the plan proceeds. Thus, Chelsea sought a court order requiring

Lynn to turn over the proceeds to Dan’s Estate, or to his four living adult

children. The trial court referred the matter to a general magistrate.

In response to the motion, Lynn asserted that as the first named

beneficiary she was entitled to Dan’s 401(k) plan proceeds and that she had

never waived entitlement to the proceeds under the Agreement. Specifically,

Lynn argued that because the Agreement did not specify who is to receive

the so-called “death benefits” under the 401(k) plan, the Agreement was

insufficient to override the beneficiary designation form, which remained

unchanged by Dan after the couple divorced.

Following a hearing, the general magistrate entered its report and

recommendation finding that paragraph 9.1 of the Agreement is not a waiver

of beneficiary rights because there is no specific reference to “death benefits”

or “death beneficiary designations” to override the 401(k) plan document

naming Lynn as the first beneficiary. The general magistrate relied on the

Supreme Court’s decision in Crawford v. Barker, 64 So. 3d 1246 (Fla. 2011),

in which Justice Pariente, writing for the majority, stated, in dictum, the

following general proposition:

Absent the marital settlement agreement providing who is or is not to receive the death benefits or specifying the beneficiary, courts should look no further than the named beneficiary on the policy, plan, or account. General language such as language stating who is to receive ownership is not specific enough to override the plain language of the beneficiary designation. Magic words are not required; however, if the parties wish to specify in a marital settlement agreement that a spouse will not receive the death benefits or wish to specify a

particular beneficiary, this should be done clearly and unambiguously.

Id. at 1256.

The general magistrate also relied upon Smith v. Smith, 919 So. 2d

525 (Fla. 5th DCA 2005), where the Fifth District similarly stated:

[W]hile it may be possible in a marital settlement agreement to waive one’s right as a beneficiary of insurance policies, that waiver can only be accomplished if the waiving party specifically gives up his or her rights to the “proceeds” of these policies.[n.1] Otherwise, one must look only to the beneficiary designation made by the insured and filed with the insurer. [n.1] Obviously, some other language such as “death benefits” would likely suffice. Id. at 528. The general magistrate also found that Florida’s revocation-on-

divorce statute enacted after Crawford, section 732.703(2), Florida Statutes

(2017),3 is inapplicable to the extent that federal law, in this case ERISA,

A designation made by or on behalf of the decedent providing for the payment or transfer at death of an interest in an asset to or for the benefit of the decedent’s former spouse is void as of the time the decedent’s marriage was judicially dissolved or declared invalid by court order prior to the decedent’s death, if the designation was made prior to the dissolution or court order. The decedent’s interest in the asset shall pass as if the decedent’s former spouse predeceased the decedent. An individual retirement account described in s. 408 or s. 408A of the Internal Revenue Code of 1986, or an employee benefit plan, may not be treated as a trust for purposes of this section.

provides otherwise. Based on these conclusions of law, the general

magistrate recommended that the trial court deny the Estate’s motion to

enforce the Agreement against Lynn.

The Estate filed exceptions to the magistrate’s finding that since the

Agreement does not expressly state that Lynn waived entitlement to the

“death benefits” from Dan’s 401(k) plan, Lynn is entitled to those benefits as

the named beneficiary. The Estate asserted that if the Agreement was silent

as to who was entitled to receive the “death benefits” of the 401(k) plan, then

Florida’s revocation-on-divorce statute would provide the legal mechanism

to automatically revoke Lynn’s beneficiary designation and provide a transfer

of these benefits as if Lynn had predeceased Dan.

The trial court sustained the Estate’s exceptions to the general

magistrate’s report. In doing so, the trial court found, based on the clear and

unambiguous language in the Agreement, that

Dan did not intend, and Lynn did not expect, to have the proceeds of Dan’s 401(k) plan transferred to Lynn upon Dan’s death, as much as Lynn did not intend and Dan did not expect to have the proceeds of Lynn’s 401(k) plan, if any, transferred to Dan upon Lynn’s death. . . . . [I]n the present case, the [Agreement] specifically dictates who is to receive the proceeds of the 401(k) plan at issue. The [Agreement] provides under Article IX, “RETIREMENT” that both Dan and Lynn, not only have exclusive ownership over their own

401(k) plans, but also the right to receive all increases thereof, proceeds therefrom and rights thereto. The trial court further concluded, relying upon recent cases from

several state and federal jurisdictions, that Dan’s estate is not precluded from

seeking enforcement of the Agreement “simply because Dan forgot to fill out

a form.” Accordingly, the trial court ordered Lynn to turn over all proceeds

received from Dan’s 401(k) plan to the Estate’s counsel within ten days of its

order. Lynn appealed this order.

ANALYSIS

“We review a trial court’s decision to accept or reject a general

magistrate’s report and recommendations for an abuse of discretion.”

Lascaibar v. Lascaibar, 156 So. 3d 547, 549 n.1 (Fla. 3d DCA 2015). The

trial court “is free to reach a conclusion of law, contrary to that of a master,

which he [or she] considers in the exercise of his [or her] judicial discretion

produces a more equitable solution to the issues posed for decision.”

Mounce v. Mounce, 459 So. 2d 437, 437 (Fla. 3d DCA 1984) (citation

omitted).

“A marital settlement agreement and a deferred compensation fund are

both contracts and subject to contract interpretation principles. Where the

terms of a contract are clear and unambiguous, the parties’ intent must be

gleaned from the four corners of the document.” Crawford, 64 So. 3d at

1255–56 (noting that courts are “to view settlement agreements as well as

the terms of beneficiary-designated policies, plans, or accounts as contracts

and to apply the plain language of those documents”).

Lynn asserts that the Agreement failed to specify who was to receive

the “death benefits” under Dan’s 401(k) plan and as such any waiver under

the Agreement constitutes a general release, which is insufficient to override

the beneficiary designation form. The Estate responds that both Dan and

Lynn unambiguously waived any claim or interest, including the right to

receive proceeds, from the other’s 401(k) plan. We must look to the plain

language of the Agreement to determine whether Lynn waived entitlement

to Dan’s 401(k) plan proceeds.

The Agreement provides the following specific waiver:

9.1 Each party shall receive any and all benefits existing by reason of his or her past, present, or future employment . . . including but not limited to any . . . retirement plan . . . 401(k) plan . . . whether matured or unmatured, accrued or unaccrued, vested or otherwise, together with all increases thereof, the proceeds therefrom and any other rights related thereto. The other party hereby waives and releases any and all claims or interest therein. (emphasis added). This provision clearly mentions Dan’s 401(k) plan.

According to the Supreme Court’s decision in Crawford, “when the

settlement agreement mentions the disputed policy or plan, the question

then becomes whether the language in the settlement agreement is specific

enough to override the predissolution beneficiary.” 64 So. 3d at 1253. As

mentioned earlier, the Supreme Court in Crawford generally stated:

. . . absent the marital settlement agreement providing who is or is not to receive the death benefits or specifying who is to be the beneficiary, courts should look no further than the named beneficiary in the separate document of the policy, plan, or account. General language in a marital settlement agreement, such as language stating who is to receive ownership, is not specific enough to override the plain language of the beneficiary designation in the separate document. The spouse, who owns the policy, plan, or account following the dissolution of marriage, is otherwise free to name any individual as the beneficiary; however, if the spouse does not change the beneficiary, the beneficiary designation in the separate document controls. Id. at 1248. Here, the plain language of paragraph 9.1 under the Agreement is

specific enough to override the beneficiary designation form. The Agreement

references the disputed 401(k) plan and the “proceeds therefrom.” The

Agreement further specifically and unequivocally provides that Dan and Lynn

“shall receive any and all benefits” of his or her own 401(k) plan, including

“all increases thereof, the proceeds therefrom and any other rights related

thereto,” of which the other party “waives and releases any and all claims or

interest therein.” This is not the general language, merely stating who is to

receive ownership of the plan, disapproved of by the Supreme Court in

Crawford.

Indeed, the general language in the settlement agreement in Crawford

provided that the husband “shall retain retirement money” under a deferred

compensation plan. As the trial court properly noted in the order under

review:

The distinction between the present case and Crawford is clear and obvious. In Crawford the marital settlement agreement included only general language as to who is to receive ownership of the deferred compensation plan, but failed to identify who was to receive the proceeds of the deferred compensation plan. Crawford noted that while a party may waive one’s right as a beneficiary, that waiver can only be accomplished if the waiving party specifically gives up his or her rights to the proceeds of the plan. We agree with the trial court’s sound analysis. The argument that the

Agreement is not specific enough to override the beneficiary designation

form because the words “death benefits” were not used is unconvincing. See

Crawford, 64 So. 3d at 1256 (noting that “[m]agic words are not required” in

a marital settlement agreement in order to specify who is to receive the

proceeds or benefits of a policy, plan, or account). We decline any invitation

to rewrite the Agreement, which was freely and voluntarily entered into by

Dan and Lynn.⁵

Likewise, in Smith, the marital settlement agreement generally

referenced a retirement plan and provided, “Husband shall receive as his

own and Wife shall have no further rights or responsibilities regarding these

assets.” The Fifth District concluded:

[T]he marital settlement agreement did not mention a disposition of the proceeds of the plans and accounts, and the decedent never changed the beneficiary designations. Under these circumstances, courts “need look no further than the plain language of the policy” to determine who the decedent intended as beneficiary of the proceeds. 919 So. 2d at 528 (emphasis added) (quoting In re Estate of Dellinger, 760

So. 2d 1016, 1017 (Fla. 4th DCA 2000)). Here, in contrast, the Agreement

expressly mentions the “proceeds” of the disputed 401(k) plan.6

In addition to the specific waiver of the 401(k) plan proceeds, and as

the trial court properly found, the Agreement also contained a general waiver

provision: Dan and Lynn “shall have exclusive ownership in all items of

property that are currently in his or her possession or control, and the other

party waives and releases any and all claim or interest in such items.”

Accordingly, based on the plain language of the Agreement, Dan and

Lynn intended to receive all rights and benefits, including the proceeds, from

their respective 401(k) plans and unambiguously waived any and all claims

or interests in the other’s 401(k) plan. See Crawford, 64 So. 3d at 1256–57.

In further support of her entitlement to Dan’s 401(k) plan proceeds,

Lynn attempts to argue that Florida’s revocation-on-divorce statute is

expressly preempted by ERISA. As noted earlier, following the Supreme

Court’s decision in Crawford, in 2012 the Legislature enacted Florida’s

revocation-on-divorce statute to address the effects of a dissolution of

marriage upon a pre-dissolution beneficiary designation form executed in

favor of a former spouse. But that issue is not raised here.

The definitive question here is whether Lynn waived entitlement to the

proceeds paid over to her as the named beneficiary by private agreement—

his or her rights to the ‘proceeds’ of these policies” and “[o]bviously, some other language such as ‘death benefits’ would likely suffice”).

not by operation of law. Therefore, in holding that Lynn waived her

entitlement to the disputed 401(k) plan proceeds under the Agreement, we

are not required to delve into statutory interpretation or venture into the

thicket of ERISA preemption.⁷ Because the marital settlement agreement

clearly provides that Dan and Lynn shall receive the proceeds from their

respective 401(k) plan and specifically waive any entitlement to such

proceeds from the other’s plan, application of Florida’s revocation-on-divorce

statute is not required, and we therefore express no view as to its validity.

The more pertinent question, which is one of first impression for this

Court, is whether Dan’s estate can bring this state law action against Lynn,

as the named beneficiary, to enforce a contractual waiver after distribution

of the ERISA-governed 401(k) plan proceeds. This inquiry was left for

another day by the Supreme Court in Kennedy. 555 U.S. at 299 n.10 (“Nor

do we express any view as to whether the Estate could have brought an

action in state or federal court against [the named beneficiary] to obtain the

benefits after they were distributed.”). Since then, several state and federal

appellate courts have been called upon to answer it. The Eleventh Circuit

Court of Appeals did so in MetLife Life and Annuity Company of Connecticut

v. Akpele, 886 F. 3d 998 (11th Cir. 2018).

In MetLife, the Eleventh Circuit held that, while “a party who is not a

named beneficiary of an ERISA plan may not sue the plan for any plan

benefits,” (which is not the case here), that party may sue the plan

beneficiary to recover those benefits, “but only after the plan beneficiary has

received the benefits.” Id. at 1007. In reaching this decision, the Eleventh

Circuit relied upon a sister appellate court’s decision, Estate of Kensinger v.

URL Pharma, Inc., 674 F. 3d 131 (3d Cir. 2012),8 which held that once the

benefits were distributed to the designated beneficiary, ERISA is no longer

implicated. Id. at 137 (“[T]o the extent that ERISA is concerned with the

expeditious payment of plan proceeds to beneficiaries, permitting suits

against beneficiaries after benefits have been paid does not implicate any

concern of expeditious payment or undermine any core objective of ERISA.”)

(emphasis in original).⁹

In line with MetLife, Kensinger, and other analogous decisions,10 the

Estate asserts that ERISA does not preempt post-distribution suits against

named beneficiaries to enforce a contractual waiver of plan proceeds. We

agree and approve the growing body of case law supporting the Estate’s

position that it can sue to recover the proceeds after they are distributed by

the ERISA plan administrator pursuant to the plan documents.

CONCLUSION

Because the trial court is not bound by the general magistrate’s

conclusions of law, we hold that the trial court did not abuse its discretion in

rejecting the magistrate’s erroneous interpretation of the Agreement and

sustaining the Estate’s exceptions. Lynn Martinez explicitly waived any

entitlement to the proceeds of Dan Olson’s 401(k) plan under the marital

settlement agreement. Therefore, the Estate is entitled to bring this action

against Lynn to enforce that contractual waiver and to recover the plan

proceeds.

Affirmed.