Richard W. Meier v. Mary J. Burnsed ( 2022 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Richard Walter Meier and the Estate of William Carl
Meier, by and through Conrad Meier, its Personal
Representative, Appellants,
v.
Mary J. Burnsed, Respondent.
Appellate Case No. 2019-000518
Appeal From Beaufort County
Marvin H. Dukes, III, Special Circuit Court Judge
Opinion No. 5947
Heard February 9, 2022 – Filed September 28, 2022
REVERSED
H. Fred Kuhn, Jr., of Moss & Kuhn, PA, of Beaufort, for
Appellants.
Peggy McMillan Infinger, of Belk Cobb Infinger &
Goldstein, PA, of Charleston; Paul H. Infinger, of Paul
H. Infinger, LLC, of Beaufort; and James B. Richardson,
Jr., of Columbia; all for Respondent.
KONDUROS, J.: In this dispute over the proceeds of a life insurance policy,
Richard Walter Meier and the Estate of William Carl Meier, by and through
Conrad Meier, its personal representative, (collectively, the Meiers) appeal the
circuit court's grant of summary judgment to Mary J. Burnsed. They contend the
court erred in finding section 62-2-507 of the South Carolina Code (2022) did not
apply to revoke a beneficiary designation made before a divorce when both the
beneficiary designation and divorce occurred prior to the effective date of the
statute. We reverse.
FACTS/PROCEDURAL HISTORY
William Carl Meier (William) and Burnsed married on July 19, 1997. On June 16,
1998, William obtained a $250,000 life insurance policy (the Policy) from Western
Reserve Life Assurance Company of Ohio. 1 He designated Burnsed as the primary
beneficiary and his brother Richard as the contingent beneficiary. 2 William and
Burnsed divorced on November 26, 2002. The family court stated in the divorce
decree: "Neither party desires spousal support or alimony from the other party, and
each party waives any claim he/she may have against the other party. . . . Neither
party has acquired assets or debts during the marriage in which the other party
would have an equitable interest." William paid the premiums for the Policy and
maintained the Policy until his unexpected death on December 26, 2017.
On February 5, 2018, the Meiers filed an action against Burnsed and Transamerica
asserting there exists a justiciable controversy over the proper beneficiary of the
Policy. They asserted the divorce of William and Burnsed revoked William's
designation of Burnsed as beneficiary under section 62-2-507(c) of the South
Carolina Code (2022), which codifies the presumption an insured does not intend
his or her former spouse to remain a beneficiary of any insurance policies after
divorce. S.C. Code Ann. § 62-2-507 reporter's cmt. (2022).
On April 12, 2018, Burnsed filed an answer, counterclaim, and cross-claim,
asserting section 62-2-507 did not operate to revoke her as primary beneficiary of
the Policy. She counterclaimed for tortious interference with a contract and cross-
claimed against Transamerica for breach of contract and unreasonable and bad
faith refusal to pay benefits under contract.
On April 20, 2018, the Meiers filed a motion for summary judgment, asserting
William and Burnsed's divorce revoked the designation of Burnsed as the
1
Western merged into Transamerica Premier Life Insurance Company effective
October 1, 2014. Transamerica assumed all rights and obligations of the insurer
under the Policy.
2
The Meiers maintain William named Richard instead of Conrad, his son from a
previous marriage, because Conrad was a minor at the time William obtained the
Policy.
beneficiary, pursuant to section 62-2-507(c). They requested the circuit court
declare Burnsed was not a beneficiary of the Policy and order Transamerica to pay
Richard the proceeds from the Policy as alternate beneficiary.
On April 23, 2018, Transamerica filed an answer, counterclaim in interpleader, and
cross-claim in interpleader. It asserted it was "unable to determine the correct
recipient of the death benefit payable under the Policy[] and the correct recipient
should be determined by" the court. It maintained all issues alleged in the
complaint should be resolved through interpleader. Transamerica requested the
court order it to pay $250,000 into the registry of the court and discharge it from
further liability and dismiss it as a party with prejudice. On May 11, 2018,
Transamerica filed an answer to Burnsed's cross-claims, requesting they be
dismissed.
On May 30, 2018, Burnsed filed a motion for summary judgment, arguing South
Carolina Act Number 100 of 2013 (the Act), 3 codified as section 62-2-507, does
not retroactively apply in the case of any divorce entered before January 1, 2014,
the effective date of the statute.
Burnsed and the Meiers submitted affidavits with their motions for summary
judgment. The Meiers' affidavits asserted William wanted his son to receive the
Policy's proceeds whereas Burnsed's affidavits described her continuing close
relationship with William after their divorce and stated William "frequently
reminded" her that she was the beneficiary of his Policy. Burnsed also submitted
emails and text messages she and William exchanged in the years after their
divorce.
On June 18, 2018, with the consent of the parties, the circuit court granted
Transamerica's motion to deposit the $250,000 payable under the Policy along with
any applicable interest into the registry of the court.
3
Act No. 100, § 1, 2013 S.C. Acts 529, 588-91. The legislature later amended
section 62-2-507 again and that amendment went into effect on May 18, 2018.
The second amendment added only the following language to subsection (a)(4) of
the section: "'Governing instrument' does not include a beneficiary designation
made in connection with a governmental employee benefit plan established or
maintained for employees of the government of the State or a political subdivision
thereof, or by an agency or instrumentality of any of the foregoing." Act No. 250,
§ 1, 2018 S.C. Acts 1816, 1816-17.
On June 26, 2018, the circuit court 4 held a hearing 5 on the Meiers' motion for
summary judgment. On August 10, 2018, the circuit court filed an order denying
the Meiers' motion. The court found: "The question presented by this case is
whether [section 62-2-507] can apply to [a] life insurance policy when both the
policy and the divorce occurred before this statute was enacted, yet the death of the
owner of the insurance policy occurred after the enactment of the statute." The
court found section "62-2-507 is not retroactive under th[o]se facts." The court
looked at several cases from other jurisdictions. One of those cases, Stillman v.
Teachers Insurance & Annuity Ass'n College Retirement Equities Fund, 343 F.3d
1311 (10th Cir. 2003), from the United States Court of Appeals for the Tenth
Circuit, which examined a Utah statute. The circuit court found that unlike the
Utah statute, which explicitly stated that amendments to the statute applied to
"governing instruments executed before" the amendments, "the South Carolina
probate code has no equivalent provision in the language of the code itself." The
court noted however, that the "language [referenced by the Tenth Circuit] does
appear in the Reporter's Comment of some acts that were later codified into the
probate code, but it does not appear in [the Act] [section] 1, which was codified as
. . . [section] 62-2-507, the statute in dispute here." The circuit court determined
"the [Utah] statutory language upon which the Tenth Circuit relied does not exist in
the South Carolina code." The court also looked at the United States Supreme
Court case of Sveen v. Melin, 138 S. Ct. 1815 (2018), which examined the
constitutionality of retroactively applying a revocation-upon-divorce statute. The
court distinguished Sveen, noting that "while the retroactive application of the
revocability statute might not have been unconstitutional in [Sveen], there are
reasons to believe that, under the circumstances currently before the court, . . .
[section] 62-2-507 does change [William's] contractual relationship with the
insurance company."
On March 11, 2019, the circuit court 6 held a hearing on Burnsed's motion for
summary judgment. On March 21, 2019, the circuit court filed an order granting
Burnsed's motion. The court found section 62-2-507(c) "was not intended by the
General Assembly to apply retroactively in the case of a divorce entered before the
effective date of the statute." This appeal followed.
4
The Honorable Perry M. Buckner heard the motion.
5
The transcript of this hearing is not contained in the record; this hearing only
involved the Meiers' motion for summary judgment and not Burnsed's, which was
heard later.
6
The Honorable Marvin H. Dukes III, sitting as special circuit court judge, heard
this motion.
STANDARD OF REVIEW
The purpose of summary judgment is to expedite the disposition of cases not
requiring the services of a fact finder. George v. Fabri, 345 S.C. 440, 452, 548
S.E.2d 868, 874 (2001). When reviewing the grant of a summary judgment
motion, this court applies the same standard that governs the trial court under Rule
56(c), SCRCP. Fleming v. Rose, 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002).
"When the parties file cross-motions for summary judgment, the issue becomes a
question of law for the [c]ourt to decide de novo." S.C. Pub. Int. Found. v.
Calhoun Cnty. Council, 432 S.C. 492, 495, 854 S.E.2d 836, 837 (2021); see also
Quicken Loans, Inc. v. Wilson, 425 S.C. 574, 579, 823 S.E.2d 697, 700 (Ct. App.
2019) ("Whe[n] cross[-]motions for summary judgment are filed, the parties
concede the issue before us should be decided as a matter of law." (quoting
Wiegand v. U.S. Auto. Ass'n, 391 S.C. 159, 163, 705 S.E.2d 432, 434 (2011))).
"[T]he interpretation of a statute is a question of law for the [c]ourt to review de
novo." Calhoun Cnty. Council, 432 S.C. at 495, 854 S.E.2d at 837. "Determining
the proper interpretation of a statute is a question of law, and this [c]ourt reviews
questions of law de novo." Buchanan v. S.C. Prop. & Cas. Ins. Guar. Ass'n, 417
S.C. 562, 566, 790 S.E.2d 783, 785 (Ct. App. 2016) (quoting Lambries v. Saluda
Cnty. Council, 409 S.C. 1, 7, 760 S.E.2d 785, 788 (2014)), aff'd as modified, 424
S.C. 542, 819 S.E.2d 124 (2018). "Questions of law may be decided with no
particular deference to the trial court." Wilson, 425 S.C. at 579, 823 S.E.2d at 700
(quoting Wiegand, 391 S.C. at 163, 705 S.E.2d at 434). "In a case raising a novel
issue of law regarding the interpretation of a statute, the appellate court is free to
decide the question with no particular deference to the lower court." Buchanan,
417 S.C. at 566, 790 S.E.2d at 785 (quoting Lambries, 409 S.C. at 7-8, 760 S.E.2d
at 788). "The appellate court is free to decide the question based on its assessment
of which interpretation and reasoning would best comport with the law and public
policies of this state and the [c]ourt's sense of law, justice, and right." Id. at 567,
790 S.E.2d at 785 (quoting Lambries, 409 S.C. at 8, 760 S.E.2d at 788).
"Generally, an action on a life insurance policy is a legal action involving a
question of contract law." Est. of Revis ex rel. Revis v. Revis, 326 S.C. 470, 476,
484 S.E.2d 112, 115 (Ct. App. 1997). "Thus, for example, where the action
involves the question of the entitlement of a widow to life insurance proceeds after
she has caused the death of her spouse, the action is one at law." Id.LAW/ANALYSIS
The Meiers contend the circuit court erred in concluding section 62-2-507 of the
South Carolina Code (2022) did not revoke the designation of Burnsed as
beneficiary of the Policy and accordingly granting summary judgment to Burnsed.
They maintain the circuit court incorrectly determined that applying section
62-2-507 to the facts of this case would be a retroactive application and that such
retroactive application would be wrong because retroactive application was neither
expressly nor impliedly authorized. They assert retroactive application of the
statute is not required to revoke the designation simply because the divorce
preceded the statute's enactment. They contend the death of the insured was the
event that triggered the application of the statute. Additionally, they argue the
statute itself expresses it applies retroactively because it states the Act applies to
"governing instruments," i.e., a life insurance beneficiary designation, "executed
before the effective date of the act unless there is a clear indication of a contrary
intent" in the terms of the life insurance beneficiary designation. We agree.
"The primary rule of statutory construction is to ascertain the intent of the General
Assembly." S.C. Pub. Int. Found. v. Calhoun Cnty. Council, 432 S.C. 492, 497,
854 S.E.2d 836, 838 (2021). "Whe[n] the statute's language is plain, unambiguous,
and conveys a clear, definite meaning, the rules of statutory interpretation are not
needed and the court has no right to impose another meaning." Id. (quoting Town
of Mt. Pleasant v. Roberts, 393 S.C. 332, 342, 713 S.E.2d 278, 283 (2011)).
"Accordingly, courts will 'give words their plain and ordinary meaning without
resort to subtle or forced construction to limit or expand the statute's operation.'"
Id. (quoting State v. Sweat, 386 S.C. 339, 350, 688 S.E.2d 569, 575 (2010)). "A
statute should be given a reasonable and practical construction consistent with the
purpose and policy expressed in the statute." Ga.-Carolina Bail Bonds, Inc. v.
County of Aiken, 354 S.C. 18, 22, 579 S.E.2d 334, 336 (Ct. App. 2003). "Once the
Legislature has made [a] choice, there is no room for the courts to impose a
different judgment based upon their own notions of public policy." S.C. Farm
Bureau Mut. Ins. Co. v. Mumford, 299 S.C. 14, 20, 382 S.E.2d 11, 14 (Ct. App.
1989).
Section 62-2-507 of the South Carolina Code states a "divorce . . . revokes any
revocable . . . beneficiary designation made by a divorced individual to the
divorced individual's former spouse in a governing instrument," "[e]xcept as
provided by the express terms of a governing instrument, a court order, or a
contract relating to the division of the marital estate made between the divorced
individuals before or after the marriage[] [or] divorce." S.C. Code Ann.
§ 62-2-507(c)(1)(i).7 The statute defines governing instrument as "an instrument
executed by the divorced individual before the divorce. . . [from] the individual's
former spouse including, but not limited to wills, revocable inter vivos trusts,
powers of attorney, life insurance beneficiary designations, annuity beneficiary
designations, retirement plan beneficiary designations[,] and transfer on death
accounts." S.C. Code Ann. § 62-2-507(a)(4).
The Reporter's Comment to the section states, "The 2013 amendment expand[ed]
this section to cover life insurance . . . beneficiary designations . . . to the former
spouse that the divorced individual established before the divorce . . . ." S.C. Code
Ann. § 62-2-507 reporter's cmt. (2022). The comment further provides, "This
section effectuates a decedent's presumed intent: without a contrary indication by
the decedent, a former spouse will not receive any probate or nonprobate transfer
as a result of the decedent's death." Id. The Act indicated it took effect on January
1, 2014 and on that date, unless otherwise provided in the Act, "any rule of
construction or presumption provided in this act applies to governing instruments
executed before the effective date of the act unless there is a clear indication of a
contrary intent in the terms of the governing instrument," subject to item (5) and
subsection (C).8 Act No. 100, § 4(A), (B)(4), 2013 S.C. Acts 529, 1038-39
(emphasis added).
7
Prior to the enactment of section 62-2-507, this court held, "Generally, in South
Carolina, divorce does not per se affect the rights of a beneficiary interest."
Stribling v. Stribling, 369 S.C. 400, 405, 632 S.E.2d 291, 293 (Ct. App. 2006).
"However, it is generally recognized that a beneficiary may contract away the
beneficiary interest through a separation or property settlement agreement, even if
the beneficiary designation is not formally changed." Id. at 405, 632 S.E.2d at 294.
In Davis v. Southern Life Insurance Co., our supreme court ruled that during the
lifetime of the insured, the named beneficiary has no vested property right in a life
insurance contract, but merely an expectancy, when a right to change the
beneficiary has been reserved to the insured in the policy. 249 S.C. 194, 199, 153
S.E.2d 399, 401 (1967); see also Stribling, 369 S.C. at 406, 632 S.E.2d at 294
(noting the beneficiary to a life insurance policy merely has an expectancy interest
in the policy until the owner's death).
8
Item (5) provides "an act done and any right acquired or accrued before the
effective date of the act is not affected by this act." Act No. 100, § 4(B)(5), 2013
S.C. Acts 529, 1039. Subsection (C) states, "If a right is acquired, extinguished, or
barred upon the expiration of a prescribed period that has commenced to run under
any other statute before the effective date of the act, that statute continues to apply
Justice Breyer has explained the reasoning behind states enacting statutes like
section 62-2-507 that revoke life insurance beneficiary designations of a spouse
upon divorce: "As many jurisdictions have concluded, divorced workers more
often prefer that a child, rather than a divorced spouse, receive those assets. Of
course, an employee can secure this result by changing a beneficiary form; but
doing so requires awareness, understanding, and time." Egelhoff v. Egelhoff ex rel.
Breiner, 532 U.S. 141, 158-59 (2001) (Breyer, J., dissenting). "That is why . . .
many . . . jurisdictions have created a statutory assumption that divorce works a
revocation of a designation in favor of an ex-spouse." Id. at 159. "That
assumption is embodied in the Uniform Probate Code; it is consistent with human
experience; and those with expertise in the matter have concluded that it 'more
often' serves the cause of '[j]ustice.'" Id. (alteration by dissent) (quoting John H.
Langbein, The Nonprobate Revolution and the Future of the Law of Succession, 97
Harv. L. Rev. 1108, 1135 (1984)). 9
"Retroactive legislation, though frequently disfavored, is not absolutely
proscribed." Kirven v. Cent. States Health & Life Co., of Omaha, 409 S.C. 30, 40,
760 S.E.2d 794, 799 (2014) (quoting In re Marriage of Bouquet, 546 P.2d 1371,
1376 (Cal. 1976)), opinion after certified question answered, No. 3:11-CV-2149-
MBS, 2014 WL 12734325 (D.S.C. Dec. 12, 2014). "Indeed, a state may
pass retrospective laws absent direct constitutional prohibition." Id. "In the
construction of statutes, there is a presumption that statutory enactments are to be
considered prospective rather than retroactive in their operation unless there is a
specific provision or clear legislative intent to the contrary." Hercules Inc. v. S.C.
to the right even if it has been repealed or superseded." Act No. 100, § 4(C), 2013
S.C. Acts 529, 1039.
9
An opinion from a New York surrogate's court has also recognized the same
reasons for enacting these types of statutes. See In re Est. of Sugg, 12 N.Y.S.3d
842, 847 (Sur. Ct. 2015) ("Revocation-by-divorce statutes adopt the presumption
that in the vast majority of cases the testator's failure to revoke his will subsequent
to divorce is due to neglect." (quoting Alan S. Wilmit, Applying the Doctrine of
Revocation by Divorce to Life Insurance Policies, 73 Cornell L. Rev. 653, 659
(1988))); id. ("[A] person is as likely to neglect to change the beneficiary of a life
insurance policy as to neglect to change a will." (alteration by court) (quoting
Wilmit, 73 Cornell L. Rev. at 671-72)); id. ("Even with ample time to notify the
insurance company, divorced spouses procrastinate or neglect their personal
financial matters." (quoting Susan N. Gary, Applying Revocation-On-Divorce
Statutes to Will Substitutes, 18 Quinnepac Prob. L.J. 83, 95 (2004))).
Tax Comm'n, 274 S.C. 137, 143, 262 S.E.2d 45, 48 (1980). "A principal exception
to . . . [this] presumption is that remedial or procedural statutes are generally held
to operate retrospectively." Id.; see also Goff v. Mills, 279 S.C. 382, 386, 308
S.E.2d 778, 780 (1983) (noting the supreme "[c]ourt has consistently approved
retroactive application of statutes [that] provide procedural or remedial benefits as
opposed to statutes affecting vested or substantial rights").
"No statute will be applied retroactively unless that result is so clearly compelled
as to leave no room for reasonable doubt . . . ." Boyd v. Boyd, 277 S.C. 416, 418,
289 S.E.2d 153, 154 (1982) (omission by court) (quoting Hyder v. Jones, 271 S.C.
85, 88, 245 S.E.2d 123, 125 (1978)). In Boyd, the court found the statute at issue
"contain[ed] no specific provision mandating retroactive application, and [the court
was] unable to glean any legislative intention from the statute other than that of
prospective application." Id.; see also Schall v. Sturm, Ruger Co., 278 S.C. 646,
650, 300 S.E.2d 735, 737 (1983) (holding that when the act enacting a statute
contained nothing "beyond a statement of its 'effective date,' we must follow the
well-settled rule that a statute may not be applied retroactively in the absence of
specific provision or clear legislative intent to the contrary"); Fid. & Cas. Ins. Co.
of N.Y. v. Nationwide Ins. Co., 278 S.C. 332, 334, 295 S.E.2d 783, 784 (1982)
("[T]he language of the . . . amendment to [a statute] d[id] not indicate an intention
by the legislature to give the amendment retroactive effect. In the absence of a
clear indication of such an intention, statutes will not be given retroactive effect.").
"In addition to looking at whether the statute is remedial in nature, the United
States Supreme Court has enunciated a test to determine if an injustice would occur
as a result of the retroactive application of a law." SCDSS/Child Support Enf't v.
Carswell, 359 S.C. 424, 431, 597 S.E.2d 859, 862 (Ct. App. 2004). "The three
factors to consider are: the nature and identity of the parties, the nature of their
rights, and the nature of the impact of the change in law upon those rights." Id.(citing Bradley v. Sch. Bd. of City of Richmond, 416 U.S. 696, 717 (1974)).
This case is the first time a South Carolina appellate court has examined amended
section 62-2-507. 10 However, two federal district courts for South Carolina have
10
Burnsed has provided this court with a supplemental citation to a recent
Alabama federal district court case that looked at the application of this statute
when a couple divorced in South Carolina before the Act took effect. State Farm
Life Ins. Co. v. Benham, No. 2:21-CV-00695-AKK, 2021 WL 5989081, at *2-3
(N.D. Ala. Dec. 17, 2021). However, in that case, the divorce agreement required
the life insurance policy designating the wife as the beneficiary remain in effect.
considered whether the amendment applies retroactively and reached different
conclusions. The court first considered the issue in State Farm Life Insurance Co.
v. Murphy, No. 2:15-CV-04793-DCN, 2017 WL 4551489 (D.S.C. Oct. 12, 2017).
In that case, the district court stated, "The court is making somewhat of an
educated guess as to the intent of South Carolina's legislature in drafting this
statute, as there are only three cases interpreting [section] 62-2-507." Id. at *3.
The court noted, "Of these cases, one is this court's own ruling in this case
dismissing [an ex-spouse's] breach of contract and civil conspiracy claims against
third-party defendants. The other two cases have addressed whether the statute is
preempted by the Employment Retirement Income Security Act of 1974
('ERISA')." Id. The Murphy case largely focused on whether a "final court order
mandating the equitable distribution of all marital property and debt is a 'divorce or
annulment' within the meaning of the statute," which the court determined it was. 11
Id. Following that determination, the court then found the parties "were divorced
before the January 1, 2014 effective date of the amended . . . [section] 62-2-507.
Therefore, . . . [section] 62-2-507 does not bar [the ex-spouse]'s claim for the
$100,000 in policy proceeds." Id. at *4.
Id. at *4. Much of the dispute in that case concerned if the wife was entitled to all
$100,000 of the policy's proceeds because the divorce agreement required the
policy be in the amount of at least $50,000. Id. at *1-5. The Alabama district
court ultimately made its decision without relying on South Carolina's revocation-
upon-divorce statute but noted it had "serious doubts about the retroactivity of the
amended [South Carolina] law." Id. at *5. The court noted that no South Carolina
appellate court had examined this issue but pointed to the circuit court's ruling in
the present case, which concluded the statute "does not apply retroactively to
divorces entered before the effective date of the amendment." Id. at *5 n.8. The
district court found that "reviewing the express terms of the statute, and
considering the implications of retroactivity, the court agrees that the revocation-
upon-divorce statute is best read as applying prospectively." Id. The court found,
"The statute's terms do not state otherwise, and it would be illogical to apply a
statute meant to 'effectuate[ ] a decedent's presumed intent' to life insurance
beneficiary designations in divorce agreements formed before the amendment of
the statute to include them." Id. (alteration by court) (quoting S.C. Code Ann.
§ 62-2-507 reporter's cmt.).
11
The family court issued a final order approving a separation agreement and
adopting it as the order of the court on August 5, 2010; the family court issued a
final order of divorce on March 17, 2014. Murphy, 2017 WL 4551489, at *1.
The second South Carolina district court case to consider the amended statute was
Protective Life Insurance Co. v. LeClaire, No. 7:17-CV-00628-AMQ, 2018 WL
3222796 (D.S.C. July 2, 2018). In that case, the couple divorced on August 20,
2003; the insured died on July 18, 2016; and the action was brought on March 7,
2017. Id. at *3. The court noted the effective date of the Act was January 1, 2014.
Id. The court stated "(1) th[e] [A]ct applies to any estates of decedents dying
thereafter and to all trusts created before, on, or after its effective date; (2) the
[A]ct applies to all judicial proceedings concerning estates of decedents and trusts
commenced on or after its effective date," except as otherwise provided in the Act.
Id. (quoting S.C. Code Ann. tit. 62, art. 2(B)). One side "argue[d] that the statute
should apply retroactively and that doing so does not violate the constitutional
prohibition against impairment of contracts" and the ex-spouse did "not respond
directly to this motion, but file[d] a motion for summary judgment arguing that,
inter alia, the statute does not apply." Id. The district court determined, "the
statute and the associated legislative notes shows that the South Carolina
Legislature intended for a divorce or annulment to revoke the disposition or
appointment of property, including beneficiary interests to a former spouse, unless
expressly provided otherwise." Id. at *4. The court further found, "The statute
applies to all judicial proceedings concerning estates of decedents and trusts
commenced on or after the effective date of January 1, 2014. As the Decedent
passed away after the effective date, the instant matter must be considered within
the purview of the statute."12 Id.12
The court also addressed whether the life insurance designation in the policy was
irrevocable, which is not an issue in the present case. LeClaire, 2018 WL
3222796, at *5. Additionally, the court examined whether retroactively applying
section 62-2-507 to the policy would impair the obligations of the contracts
between the ex-spouse and the life insurance company "in violation of the
Contracts Clauses of the state and federal constitutions." Id. at *4. The court
noted the United States Supreme Court had "addressed this question squarely in an
opinion," which "specifically referenced South Carolina as one of 26 states having
adopted a 'revocation-on-divorce' law substantially similar to the one at issue in
that case." Id. (citing Sveen v. Melin, 138 S. Ct. 1815 (2018)). The district court
stated the Supreme "Court concluded that such a statute does not substantially
impair pre-existing contractual arrangements even where the designation under the
policy was made before the statute was enacted"; "such a law merely puts in place
a presumption about what an insured wants after divorcing, which, as is the case
here, may be changed by the insured with 'the stroke of a pen.'" Id. (quoting Sveen,
138 S. Ct. at 1823). The court determined the Sveen opinion settled that section
62-2-507 did not violate the Contracts Clause. Id. The court also noted because
In Sveen, the United States Supreme Court looked at "whether applying
Minnesota's automatic-revocation rule[ 13] to a beneficiary designation made before
the statute's enactment violates the Contracts Clause of the Constitution." 138 S.
Ct. at 1818. The Court "granted certiorari . . . to resolve a split of authority over
whether the Contracts Clause prevents a revocation-on-divorce law from applying
to a pre-existing agreement's beneficiary designation." Id. at 1821.
In that case, the couple married in 1997, and the husband bought a life insurance
policy in 1998. Id. The husband named the then-wife as the primary beneficiary
and designated his two children from a prior marriage as the contingent
beneficiaries. Id. The couple divorced in 2007, the divorce decree did not mention
the insurance policy, the husband did nothing at that time or later to revise his
beneficiary designations, and the husband passed away in 2011. Id. The husband's
children and the now ex-wife both filed claims for the insurance proceeds. Id.;
Metro. Life Ins. Co., 853 F.3d at 411. The children "contend[ed] that under
Minnesota's revocation-on-divorce law, their father's divorce canceled [the ex-
wife's] beneficiary designation and left . . . them as the rightful recipients." Sveen,
138 S. Ct. at 1821. The ex-wife noted the Minnesota law did not exist when the
husband bought the policy and named her as the primary beneficiary and argued
"applying the later-enacted law to the policy would violate the Constitution's
Contracts Clause, which prohibits any state 'Law impairing the Obligation of
Contracts.'" Id. (quoting U.S. Const. art. I, § 10, cl. 1).
The Sveen Court held the application of the revocation-upon-divorce statute in that
case did not violate the Contracts Clause. Id. at 1818. The Court found the
Minnesota statute, as well as the model code it followed, applied the following
understanding, which had previously been applied to wills, to beneficiary
designations in life insurance policies: most parties following a divorce do not
wish to enrich their former spouse. Id. at 1822-23. The Court found that the ex-
wife correctly "notes that this extension raises a brand-new constitutional question
"the South Carolina Supreme Court applies the same standard for analyzing
contract clause claims under the state constitution as federal courts apply to the
Contract Clause under the federal constitution," the contract clause under the state
constitution is not violated. Id. at *5. We discuss Sveen in depth below.
13
"In 2002, Minnesota amended its probate code to apply the revocation-upon-
divorce statute to life insurance beneficiary designations . . . ." Metro. Life Ins. Co.
v. Melin, 853 F.3d 410, 411 (8th Cir. 2017), rev'd sub nom. Sveen, 138 S. Ct. at
1821.
because 'an insurance policy is a contract under the Contracts Clause, and a will is
not.'" Id. at 1823. However, the Court indicated the old legislative presumption
needs to "equally fit the new context: A person would as little want his ex-spouse
to benefit from his insurance as to collect under his will. Or said otherwise, the
insured's failure to change the beneficiary after a divorce is more likely the result
of neglect than choice." Id. The Court found "that means the Minnesota statute
often honors, not undermines, the intent of the only contracting party to care about
the beneficiary term." Id. The Court noted "[t]he law no doubt changes how the
insurance contract operates," but found "for lots of policyholders" it does not
impair the contract and instead does "the opposite." Id.The Court further recognized that "even when presumed and actual intent diverge,
the Minnesota law is unlikely to upset a policyholder's expectations at the time of
contracting" "because an insured cannot reasonably rely on a beneficiary
designation remaining in place after a divorce" due to divorce courts' "wide
discretion to divide property between spouses when a marriage ends."
Id. Additionally, the Supreme Court observed the "statute places no greater
obligation on a contracting party" and "impos[es] a lesser penalty for
noncompliance. Even supposing an insured wants his life insurance to benefit his
ex-spouse, filing a change-of-beneficiary form with an insurance company is as
'easy' as . . . providing a landowner with notice or recording a deed." Id. at 1824(quoting Curtis v. Whitney, 80 U.S. 68, 71 (1871)). The Court noted that "with
only 'minimal' effort, a person can 'safeguard' his contractual preferences. And
here too, if he does not 'wish to abandon his old rights and accept the new,' he need
only 'say so in writing.'" Id. at 1824-25 (first quoting Texaco, Inc. v. Short, 454
U.S. 516, 531 (1982); and then quoting Gilfillan v. Union Canal Co. of Pa., 109
U.S. 401, 406 (1883)).
The Court further noted that if a decedent wants an ex-spouse to remain as
beneficiary but does not send in the form, the "worst" consequence that could
occur "pales in comparison with the losses incurred in . . . earlier cases." Id. at
1825. The Court observed that in those earlier cases, "[w]hen a person ignored a
recording obligation," that person "could forfeit the sum total of his contractual
rights." Id. But the Court contrasted that with the result "when a policyholder in
Minnesota does not redesignate his ex-spouse as beneficiary"; in that situation, the
policy holder's "right to insurance does not lapse; . . . his contingent beneficiaries
. . . receive the money." Id. The Court expounded, "That redirection of proceeds is
not nothing; but under our precedents, it gives the policyholder—who, again, could
have 'easily' and entirely escaped the law's effect—no right to complain of a
Contracts Clause violation." Id. (quoting Conley v. Barton, 260 U.S. 677, 681
(1923)).14
Many states and also federal courts have examined whether particular statutes
revoking a beneficiary designation of a spouse following divorce apply in
situations with timing similar to the one here. Based on our research, the majority
of those decisions find that statutes apply to revoke the beneficiary designation.
Most if not all of these statutes are based on the Uniform Probate Code. We
examine a few of those cases here because we find their reasoning helpful in light
of the fact that no South Carolina appellate court has previously considered the
application of our state's version of the statute.
The Colorado Supreme Court has discussed the application of a revocation-upon-
divorce statute under facts similar to those here and held its legislature intended its
statute "to be retroactive and that such retroactive application is neither
unconstitutionally retrospective nor unconstitutionally impairs contracts." In re
Est. of DeWitt, 54 P.3d 849, 853 (Colo. 2002) (en banc). The court stated that
"[p]rior to July 1, 1995, Colorado law provided that the dissolution of marriage did
not revoke a former spouse's designation as beneficiary of a life insurance policy
absent an intent to the contrary expressed by the insured." Id. at 852. However, in
1995, the general assembly enacted a statute based on the Uniform Probate Code
that "represent[ed] a legislative determination that the failure of an insured to
revoke the designation of a spouse as beneficiary after dissolution of the marriage
more likely than not represents inattention." Id. The court determined the statute
accordingly "attempt[ed] to give effect to the presumptive intent of the decedent"
by "revok[ing] all probate and non-probate transfers to a spouse upon dissolution
of a marriage, thus preventing an individual from receiving property from her
former spouse's estate at death unless certain express provisions to the contrary
apply." Id.14
In a Minnesota federal district court case, the court noted that even if applying a
revocation-upon-divorce statute did substantially impair a deceased former
spouse's contractual rights, any impairment would "survive a constitutional
challenge because the impairment is justified and reasonable in that it serves
important public purposes, including promoting uniformity among state law
treatment of probate and non-probate transfers and implementing a rule of
construction that reflects legislative judgment that ex-spouses often intend to
change their beneficiaries." Lincoln Benefit Life Co. v. Heitz, 468 F. Supp. 2d
1062, 1069 (D. Minn. 2007) (citations omitted).
The court found the statute "specifically provides that it applies to estates, wills,
and governing instruments of decedents who die on or after July 1, 1995." Id. The
court noted that in the cases it was examining on appeal, the decedents had "died
after July 1, 1995, but their marriages to the beneficiaries [were] dissolved before
July 1, 1995." Id. Accordingly, the court stated it needed to decide "whether [the
statute] automatically revoked the designation of a former spouse as the
beneficiary of a life insurance policy, whe[n] the designation and the dissolution of
marriage occurred before the statute's effective date, but the decedent's death
occurred after the statute's effective date." Id.The court "first determine[d] that the general assembly intended [the statute] to be
applied retroactively." Id. at 853. The court then found that based on that
determination, it next needed to "decide whether such application is
unconstitutionally retrospective." Id. The court stated that because of "the unique
nature of a life insurance policy, which concerns not only the insurer and the
insured but also the named beneficiary," it needed to analyze the statute's impact
on two different groups in regards to the retrospectivity. Id. The court first
"consider[ed] [the statute's] impact on the named beneficiaries and determine[d]
that it [wa]s not retrospective." Id. The court next "consider[ed] [the statute]'s
impact on the decedents and determine that it [also] [wa]s not retrospective." Id.
The court recognized, "Absent legislative intent to the contrary, a statute is
presumed to operate prospectively, meaning it operates on transactions occurring
after its effective date. A statute is retroactive if it operates on transactions that
have already occurred or on rights and obligations that existed before its effective
date." Id. at 854 (citations omitted). The court noted that while "[r]etroactive
application of statutes is generally disfavored by both common law and statute," it
"is not necessarily unconstitutional; it is permitted where the statute effects a
change that is procedural or remedial." Id. The court further observed that
"[b]ecause some retroactively applied legislation is constitutional while some is
not, Colorado courts have marked this distinction by evoking the term contained in
the constitutional provision—'retrospective'—to describe a statute whose
retroactive application is unconstitutional." 15 Id.
15
South Carolina does not distinguish between the terms retroactive and
retrospective. Additionally, Black's Law Dictionary does not distinguish between
the two terms. See RETROACTIVE, Black's Law Dictionary (11th ed. 2019)
(defining retroactive as "extending in scope or effect to matters that have occurred
in the past.—Also termed retrospective."). However, despite Colorado's particular
The DeWitt court determined that for the facts in the cases before it, the application
of the statute was "retroactive because it w[ould] operate on a transaction that
occurred before the effective date of the statute, namely the designation of a
beneficiary to a life insurance policy by the decedent." Id. at 855. Thus, it needed
to examine "whether [the statute] is retrospective," which required it to "consider
the different interests that are implicated by the life insurance policies at issue." Id.
The court recognized, "There are three sets of interests implicated by life insurance
policies, namely the interests of the insurer, the insured-decedent, and the named
beneficiary." Id. The court noted that because the argument being made in the
cases before it was that the statute was "retrospective as to the beneficiaries and as
to the insured-decedents," its retrospectivity inquiry would "consider[] [the
statute]'s impact on both the named beneficiaries and the decedents, an analytical
framework that has been utilized by other courts considering this issue." Id. The
court explained, "A finding of retrospectivity with regard to either of these interests
will render the statute unconstitutionally retrospective for all purposes." Id. at 855-
856.
The court further reiterated that its "first inquiry in a retrospectivity analysis is
whether the general assembly intended retroactivity" and explained that to
"discern[] the general assembly's intent, [it] look[ed] to the statutory section in
question." Id. at 856. The court determined "the general assembly expressed its
intent that the statute applies when a decedent died on or after July 1, 1995," with
the following statutory language: "Except as provided elsewhere in this code and
except as provided otherwise in this section, parts 1 to 9 of article 11, as reenacted
effective July 1, 1995, shall apply to the estates, wills, or governing instruments of
decedents dying on or after July 1, 1995." Id. (emphasis added by court) (quoting
Colo. Rev. Stat. § 15-17-102(1) (2001)).
The court determined "the plain language . . . indicates the general assembly's
intent that the death of an insured-decedent on or after July 1, 1995, triggers
application of the statute." Id. The court found the fact "that the insurance
contract may have been entered into, and the divorce may have occurred, before
the effective date of the statute" did not make any difference; "the statute will be
retroactive under such circumstances." Id. The court accordingly held "the general
assembly intended [the statute] to operate retroactively." Id.use of retrospectivity to only describe the unconstitutional application for
retroactive applications, its reasoning is still persuasive.
The court noted that "a beneficiary to a life insurance contract does not possess a
vested interest in that contract" but "merely possesses an expectancy, or
contingent, interest." Id. The court therefore concluded "retroactive application of
[the statute] does not impair a vested right of the named beneficiaries, which in
turn mandates our conclusion that it is not retrospective under the 'vested right'
prong of the retrospectivity inquiry." Id. The court recognized that although "the
retroactive application of the statute would result in a named beneficiary not being
able to collect the proceeds, the nature of the named beneficiary's interest was a
mere expectancy." Id. at 857. Accordingly, the court noted it had previously "held
that [the beneficiary's] interest may be defeated 'in the manner prescribed in the
policy . . . or by statute.'" Id. (omission by court) (quoting Johnson v. N.Y. Life Ins.
Co., 138 P. 414, 416 (Colo. 1913)). The court found that although in the present
case "the statute acts to defeat [the beneficiary's] expectancy interest in the
proceeds, it cannot be reasoned that [the beneficiary's] inability to receive such
proceeds unconstitutionally imposes a new disability." Id. The court noted that it
had "long recognized that the general assembly may regulate the insurance
industry" and determined that "[i]n this case, [in which] the general assembly acted
to regulate the insurance contract in order to give effect to the presumptive intent
of the insured-decedents, [the court] decline[d] to conclude that such regulation
imposed a 'disability' of constitutional magnitude upon the named beneficiaries
with a mere expectancy interest." Id.The court further held that applying "the statute imposes neither a new duty nor a
new obligation upon the named beneficiaries: Any duty or obligation pursuant to
the statute would be upon the decedent, as the insured, to follow the statutorily
mandated procedure for ensuring that his former spouse remained the beneficiary
to the policy." Id. The court accordingly determined "the retroactive application
of [the statute] is not retrospective with regard to the beneficiaries' interests." Id.The court found that even though "the statute created new requirements in order for
the decedents to maintain their designations of beneficiary . . . the imposition of
those new requirements [was not] retrospective." Id.The court reiterated "the retroactive application of a statute is not
[unconstitutional] whe[n] it effects a change that is procedural or remedial as
opposed to substantive" and stated it "consider[ed] [the statute] to be procedural
because it relates only to a mode of procedure to enforce the right of each decedent
to designate a beneficiary." Id. The court held the statute causes "the automatic
revocation of a beneficiary designation of a former spouse upon divorce," as a
matter of procedure, but "also provides for additional procedures through which
the insured may preserve the designation of his former spouse as a beneficiary,"
i.e., "divorcing parties may add an express provision to the insurance contract, or
specify in a separation agreement, or obtain a court order, stating that [the statute]
does not act to automatically revoke a spouse's designation as beneficiary." Id.The court further noted its jurisprudence regarding retrospectivity "requires that
any new obligation, duty, or impairment that is asserted on behalf of the decedents
be balanced against the public interest and statutory objectives of [the statute]. The
statute at issue must be reasonably related to the asserted public interest and
statutory objectives." Id. (citation omitted).
The court noted the statute results in "a change in beneficiary of an insurance
policy." Id. The court found that because "[b]oth the insurance industry and the
probate process is highly regulated by statute in" the state, "the decedents in these
cases could reasonably expect that their life insurance policies would be regulated
by statute, including the possibility of a statute addressing procedural changes in
beneficiary designation." Id. at 857-58. Further, the court determined "the public
interest and statutory objectives of (1) giving finality to divorce disputes; and (2)
recognizing that the presumptive intent of a divorced spouse is to revoke the
designation of his former spouse as a beneficiary are rationally related to the
procedures and effect of [the statute]." Id. at 858. The court therefore held "that
the application of [the statute] to the decedents in these cases is not
unconstitutionally retrospective." Id.The Tenth Circuit Court of Appeals has addressed the application of a revocation-
upon-divorce statute in relation to annuity contracts. Stillman v. Tchrs. Ins. &
Annuity Ass'n Coll. Ret. Equities Fund, 343 F.3d 1311 (10th Cir. 2003). After
acknowledging "[c]ourts generally construe statutes to avoid retroactive
application," the court noted, "The principal difficulty in applying the
nonretroactivity presumption is in determining what constitutes retroactivity in a
particular context." Id. at 1315. The court provided that to determine if a statute is
being applied retroactively, a court must compare "the date the statute went into
effect and . . . the date of the activity to which the statute applies." Id. The court
indicated the effective date is generally not an issue; the issue is more often "about
what activity is targeted by the statute." Id. The court observed, "No one has
succeeded in formulating a test for retroactivity that performs well in all contexts."
Id. (citing Landgraf v. USI Film Prods., 511 U.S. 244, 270 (1994) ("Any test of
retroactivity will leave room for disagreement in hard cases, and is unlikely to
classify the enormous variety of legal changes with perfect philosophical
clarity.")). The court recognized the "various formulations" did "reflect a common
core concern—fairness." Id.In the Stillman case, the retroactivity issue concerned if a revocation-upon-divorce
provision enacted in 1998 could revoke a spouse's designation as beneficiary
"when both the conduct giving rise to the designation (the purchase of the annuity
contracts . . .) and the conduct giving rise to its potential revocation (the . . .
divorce) occurred many years before the" law went into effect "but the event that
vested the parties' rights ([the] death) postdated the enactment." Id. at 1316. The
court in that case found the husband "had the right to change beneficiaries at any
time during his lifetime." Id. at 1318. The court noted "[t]he purpose of the [Utah
Uniform Probate Code] was to effectuate his intent at the time of his death." Id.
The court held that "presuming . . . his desires (if he had stopped to consider them)
regarding the beneficiaries changed when he was divorced" was not unfair. Id.
The court recognized, "it is theoretically possible that [the husband] wished to
maintain [the ex-wife] as his beneficiary and that his reason for not making this
desire explicit is that he was relying on the pre-1998 presumption in Utah law that
his pre-divorce designation would continue after the divorce." Id. However, the
court found "as long as [it was] considering theoretical possibilities, one who was
familiar with pre-1998 case law is likely also to know of the 1998 statute, and [the
husband] had sufficient time to adjust to the statutory reversal of presumptions"
and noted that the husband had "met with a lawyer and prepared a new will—
excluding not only [the ex-wife] but also his children by her—after enactment of
the 1998 amendments." Id.
The Supreme Judicial Court of Massachusetts has very recently looked at the
application of that state's revocation-upon-divorce statute. Am. Fam. Life
Assurance Co. of Columbus v. Parker, 178 N.E.3d 859 (Mass. 2022). The court
acknowledged that its "retroactivity analysis must also address the purpose and
effect of [the act], which states that 'any rule of construction or presumption
provided in this act applies to governing instruments executed before the effective
date unless there is a clear indication of contrary intent.'" Id. at 865 (quoting 2008
Mass. Acts 1754, 1914, c. 521, § 43(5)). The court noted, "This provision, on its
face, appears to be directed at the various provisions in the act that are expressly
defined as rules of construction or presumptions with language indicating that they
apply absent a clear indication of contrary intent." Id. The court stated that
because the act "seems just to make clear that these provisions apply retroactively
the same way they apply prospectively," "the combination of [subsections] (1) and
(5) [of the act] render the entire act retroactive." Id. at 865-66.
The court concluded that "[b]ased on the language and purpose of [the statute],"
"the Legislature intended for [the statute] to be retroactive and it did so pursuant to
[subsection] (1)" of the act. Id. at 866. The court further determined subsection
(5) of the act "is limited to those sections expressly defined as rules of construction
or presumptions applicable absent contrary intent and thus does not apply to [the
statute], which is not described as a rule of construction or presumption and does
not employ the open-ended absence of contrary intent formulation." Id. The court
noted that instead the statute "includes its own more specific rules of application
and exception, thereby displacing a generalized contrary intent inquiry." Id.
The court recognized that in some other situations, in order to provide for the
retroactive application of the statute, some courts and commentators have
interpreted the statute as a rule of construction. Id. The court provided the
Stillman case as an example of that but distinguished Stillman finding, "Utah's
Uniform Probate Code differed from the Massachusetts Uniform Probate Code in
that [Utah's] equivalent of [subsection] (1) [of the act] was limited to 'wills.'" Id.
The court noted "[t]he only retroactivity provisions applicable to other instruments
in Utah were provisions related to rules of construction. In this context, where [the
statute] would not otherwise be retroactive, the Tenth Circuit interpreted [the
statute] as a rule of construction." Id. (citation omitted). The court also looked at a
statement the chief reporter for the Uniform Probate Code editorial board made "in
defending the constitutionality of the retroactive application of the Uniform
Probate Code prior to the Supreme Court's decision in Sveen": Waggoner stated
that the statute "'merely establishes a rule of construction designed to implement
intention. It reflects a legislative judgment that when the insured leaves unaltered
a will, trust, or insurance-beneficiary designation in favor of an ex-spouse, the
insured's failure to designate substitute takers more likely than not represents
inattention rather than intention.'" Id. (quoting Lawrence Waggoner, Spousal
Rights in Our Multiple-Marriage Society: The Revised Uniform Probate Code, 26
Real Prop. Prob. & Tr. J. 683, 700 (1992)). The court provided Waggoner further
stated, "The legislative judgment yields to a contrary intention." Id. (quoting
Waggoner, 26 Real Prop. Prob. & Tr. J. at 700).
The court found even though it did find those interpretations "instructive on the
importance of applying [the statute] retroactively, [it] decline[d] to adopt such an
expansive and unnecessary interpretation of rules of construction and presumptions
in the context of [subsections] (1) and (5) of the . . . act, [and decided to] rely[]
instead on the plain language of [the] statute." Id. The court determined
subsection "(1) clearly encompasses [the statute], rendering it fully retroactive.
[Subsection] (5), on its face, applies only to those rules of construction and
presumptions so entitled." Id. The court found that if subsection "(5) were
applicable to [the statute], it would also limit and not expand the retroactive effect
of [the statute], which cuts against the thrust of the Tenth Circuit and Waggoner
interpretations." Id. The court "conclude[d] that [the statute] is to be applied
retroactively, pursuant to [subsection] (1), according to the terms of both
provisions." Id.
The court found in the case before it, "[u]nless one of the statute's express
exceptions applie[d], the beneficiary designation to . . . the divorced spouse[]
would be revoked as a matter of law." Id. The court noted one of those exceptions
would be a "disposition made by a divorced individual to a former spouse . . . if
'provided by the express terms of a governing instrument, a court order, or a
contract relating to the division of the marital estate made between the divorced
individuals before or after the marriage, divorce, or annulment.'" Id. at 866-67
(footnote omitted) (quoting Mass. Gen. Laws ch. 190B, § 2-804(b) (West, Westlaw
through Ch. 125 of the 2022 2nd Ann. Sess.)). Additionally, the court noted
because the statute "only applies to governing instruments 'executed by the
divorced individual before the divorce or annulment,'" "another method of
avoiding application of [the statute] is redesignating the ex-spouse as
beneficiary after the divorce; [the statute] does not apply to such 'beneficiary
designations.'" Id. at 867 (emphases added by court) (first quoting Mass. Gen.
Laws ch. 190B, § 2-804(a)(4) (West, Westlaw through Ch. 125 of the 2022 2nd
Ann. Sess.); and then quoting Mass. Gen. Laws ch. 190B, § 1-201(4) (West,
Westlaw through Ch. 125 of the 2022 2nd Ann. Sess.)).
The Montana Supreme Court has addressed whether that state's revocation-upon-
divorce statute "appl[ied] to a life insurance policy owner's designation of his
spouse as the beneficiary, where the parties were later divorced prior to enactment
of [the statute] and the policyholder died after enactment of the statute." Thrivent
Fin. for Lutherans v. Andronescu, 300 P.3d 117, 118 (Mont. 2013) (italics
omitted). The court found the statute applied in that situation because the statute
"operates at the time of the insured's death and applies to any divorce that took
place during the insured's lifetime." Id.The Montana court noted, "Montana adopted the revocation-upon-divorce statute
from the Uniform Probate Code . . . in order to 'unify the law of probate and
nonprobate transfers.'" Id. at 119 (quoting Tit. 72, ch. 2, Mont. Code Ann.,
Annotations, Official Comments at 635 (2012)). The court stated, "The Comments
indicate that the revocation statute operates at the time the 'governing instrument is
given effect' and the provision to the former spouse is to be treated 'as if the
divorced individual's former spouse (and relatives of the former spouse) disclaimed
the revoked provisions[.]'" Id. (alteration by court) (quoting Tit. 72, ch. 2, Mont.
Code Ann., Annotations, Official Comments at 636 (2012)).
The court indicated "[t]he Comments reference two law review articles that
provide '[t]he theory of this section'" and "discuss the history and purpose of
revocation-upon-divorce statutes and confirm that, under those statutes, life
insurance is to be treated in the same manner as a will." Id. (citing Tit. 72, ch. 2,
Mont. Code Ann., Annotations, Official Comments at 636 (2012) (citing Lawrence
W. Waggoner, The Multiple-Marriage Society and Spousal Rights Under the
Revised Uniform Probate Code, 76 Iowa L. Rev. 223 (1991), and Langbein, 97
Harv. L. Rev. at 223-72)). The court noted that Langbein had explained
"life insurance is functionally indistinguishable from a will, for it satisfies the twin
elements of the definition of a will." Id. (quoting Langbein, 97 Harv. L. Rev. at
1110). The court observed Langbein further stated, "We say that a will is
revocable until the death of the testator and that the interests of the devisees are
ambulatory—that is, nonexistent until the testator's death. Unless specially
restricted by contract, the life insurance beneficiary designation operates
identically." Id. (emphasis added by court) (quoting Langbein, 97 Harv. L. Rev. at
1110). The court found, "This commentary is consistent with the interpretation of
other jurisdictions that apply the revocation-upon-divorce statute as a rule of
construction at the time the governing instrument is given effect." Id.
Additionally, the court noted that although the law in some of those other
jurisdictions include the Uniform Probate Code's "'rule of construction' statute
expressly providing that the law applies to governing instruments executed before
its effective date" and "Montana's code lacked the express statutory provision, the
Official Comments [to the Montana code] nonetheless suggest that the statute
operates at the time the instrument is given effect—i.e., upon death." Id. at 119
n.2.
The court further provided, "A statute is retroactive if it 'takes away or impairs
vested rights, acquired under existing laws, or creates a new obligation, imposes a
new duty or attaches a new disability, in respect to transactions already past.'" Id.
at 119-20 (quoting Allen v. Atl. Richfield Co., 124 P.3d 132, 135 (Mont. 2005)).
However, the court explained, "A statute is not given retroactive effect 'merely
because it is applied in a case arising from conduct antedating the statute's
enactment.'" Id. at 120 (quoting Porter v. Galarneau, 911 P.2d 1143, 1148 (Mont.
1996)). The court found that "[b]ecause [the statute] operates at the time of the
transferor's death, the statute is not given retroactive effect when applied to
a divorce predating its enactment." Id. The court determined that in that case
"[p]rior to [the husband's] death, [the wife] had no vested rights in the proceeds of
his insurance policy. Instead, her property interest was equivalent to that of a
devisee under a will—'ambulatory' and 'nonexistent.'" Id. (citation omitted)
(quoting Langbein, 97 Harv. L. Rev. at 1110). The court held "[t]he operation of
the revocation-upon-divorce statute therefore does not 'impair [ ] vested rights' and
did not result in a different legal effect from that which the transaction had under
the law at the time it occurred"—"[t]he designation of [the wife] as beneficiary had
no legal effect before the date of [the husband]'s death." Id. (second alteration by
court) (quoting Porter, 911 P.2d at 1148-49).
In a South Dakota case, an ex-spouse contended that applying the revocation-upon-
divorce statute in that case "violate[d] the fundamental rule of statutory
construction that statutes are to only have prospective effect unless a retroactive
effect is clearly intended." Buchholz v. Storsve, 740 N.W.2d 107, 111 (S.D. 2007).
However, the court found the legislature had made "clear that it intended [the
Uniform Probate Code] rules of construction . . . to apply retroactively," when the
code stated that it took "'effect on July 1, 1995'" and "'except as provided
elsewhere in [the] code,'" it "'applie[d] to governing instruments executed by
decedents dying on or after July 1, 1995, no matter when executed,'" and "'[a]ny
rule of construction or presumption provided in this code applies to governing
instruments executed before July 1, 1995, unless there is a clear indication of a
contrary intent.'" Id. (emphasis added by court) (quoting S.D. Codified Laws
§ 29A-8-101(a), (b)(2) (West, Westlaw through laws of the 2022 Reg. Sess. and
Sup. Ct. Rule 22-10)). The court noted the deceased spouse who executed the
governing instrument—in that case a retirement account—had died eleven years
after the date of enactment of the code. Id. The court determined the revocation
statute "applie[d] to the governing instrument[,] provided it is considered a 'rule of
construction.'" Id. The court, relying on Stillman, stated that because "the
revocation-upon-divorce statute attempts to effectuate the intention of the donor, it
is a rule of construction." Id. (citing Stillman, 343 F.3d at 1317).
In the present case, we find the South Carolina version of the revocation-upon-
divorce statute, section 62-2-507, applies and revokes William's designation of
Bursed as the beneficiary of the Policy, despite the fact that their divorce occurred
before the enactment of the amendment to the statute. Based on our reading of the
South Carolina statute, which is supported by other states' reading of their versions
of the statute, because William's death occurred after the date the amendment took
effect, the statute applies and revokes the designation. Further, Burnsed had no
vested interest in the policy until such time as William died. See Davis, 249 S.C.
at 199, 153 S.E.2d at 401 (recognizing that during the lifetime of an insured, a
named beneficiary has no vested right in a life insurance contract, but merely an
expectancy, when the insured reserves the right to change the beneficiary in the
policy). Accordingly, section 62-2-507 applies here to revoke William's
designation of Burnsed as beneficiary to his life insurance policy. Therefore, the
circuit court's grant of summary judgment to Burnsed is
REVERSED.
WILLIAMS, C.J., and VINSON, J., concur.