My mother passed away. Before she passed, she had a talk with my step-dad and her kids separately. She stated to me and my brother that she and my step-dad had talked about what she wanted to do with her money. She was leaving her s.s., pension and 401k to her kids. She also stated that my step-dad agreed to giving us everything and that he stated to her didn’t want any of the money. Now that she has passed, at first he acknowledged that he remembered the conversation he had with my mother and stated he was going to give my and my brother all of my mother’s money when it arrived. Now that he actually has the money, he is stating he will keep the pension and s.s. but we can keep the 401k and split it. We have him on recording stating that he will give us the 401k but when we mention the agreement he had with my mother about all of her money he does not respond. Can we take this info to court and get what is rightly ours?
ANSWER BY MARGARET CROSS-BELIVEAU:
Your mother’s social security benefits ended when she died. Your step-father may receive more in his social security as a surviving spouse, but it is not an inheritance that can be passed down to adult children. Usually the pension works the same way. Normally at retirement, the retiree elects to have a set amount paid out until the retiree’s death. The retiree can elect to receive a smaller amount that stretches over the life of the retiree and the retiree’s spouse. It is also not something that is passed onto adult children. The 401k will be paid out according to the beneficiary named on the policy. Unfortunately, your mother did not change the beneficiaries on her 401k, so legally it is your step-father’s. She did not take the necessary steps to make sure that the assets did not go to her surviving spouse. Be careful with recording people without their knowledge or consent. That is wiretapping and you can be in serious trouble for doing it and it won’t be admissible in court. If you had made financial decisions based on the fact that you were going to be given this money and now can’t pay back the debt, there could be an argument that you detrimentally relied on the promise of the money. However, you are going to possibly spend more money than was in the 401k if you proceed to court.
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Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.
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