Facts: At the time Husband and Wife divorced, each had a retirement account with the other listed as the beneficiary. They executed a marital dissolution agreement that provided, in relevant part:

Each party agrees to waive any interest he/she may have in the other party’s retirement. Wife agrees to waive any interest she may have in Husband’s Eaton Vance Growth Fund, bank accounts and certificates of deposit.
*     *     *     *     *
Each of the parties shall execute, acknowledge and deliver any and all instruments and documents in writing which shall reasonably be required for purposes of effectuating the provisions and intent of this Marital Dissolution Agreement.

Fourteen years after the divorce, Husband died without a will. At the time of his death, Wife was still listed as a beneficiary to his 401(k) retirement account.

The administrator of Husband’s estate sued Wife for a declaratory judgment finding that Wife waived any interest in the 401(k) pursuant to the marital dissolution agreement.

Wife countered that Husband’s failure to remove her as the named beneficiary indicated his intent to gift the proceeds to her. (!!!)

Both parties filed for summary judgment. The trial court granted summary judgment to Wife.

The administrator appealed.

On Appeal: The Court of Appeals reversed the trial court.

A marital dissolution agreement incorporated into a final decree of divorce is a contract that is binding on the parties. Generally, once a contract is formed it cannot be modified without consent and additional consideration for the new terms.

The Court of Appeals held there was no proof the contract — the marital dissolution agreement — had been modified:

Here, the MDA specifically addressed the divestment of Wife’s interest in the retirement account at issue. . . . While Husband failed to remove Wife as the named beneficiary, his failure does not evidence intent to modify when Wife possessed continuing obligations to waive any right she may have held in the account and to execute any documents reasonably required for the purpose of effectuating the provisions in the MDA. The record is simply devoid of any evidence establishing a modification of the MDA.

The trial court was reversed. Summary judgment was entered for the administrator of Husband’s estate.

K.O.’s Comment: Several cases with similar facts are discussed in the opinion. This happens more often than it should. The prudent attorney advises his or her clients to promptly take the steps necessary to effectuate the terms of the marital dissolution agreement.

Manning v. Manning (Tennessee Court of Appeals, Eastern Section, June 30, 2016).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family Law Attorney.