Maretta v. Hillman ( 2012 )


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  • Present:   All the Justices
    JUDY A. MARETTA
    OPINION BY
    v.   Record No. 102042         CHIEF JUSTICE CYNTHIA D. KINSER
    January 13, 2012
    JACQUELINE HILLMAN
    FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
    Michael F. Devine, Judge
    Judy A. Maretta (Maretta), as the named beneficiary of a
    Federal Employees' Group Life Insurance (FEGLI) policy, received
    FEGLI benefits upon the death of her ex-husband.   The question
    on appeal is whether federal law preempts Code § 20-111.1(D),
    which otherwise would make Maretta liable to her ex-husband's
    widow, Jacqueline Hillman (Hillman), for those benefits.
    In the event of a decree of annulment or divorce from the
    bond of matrimony, Code § 20-111.1(A) revokes "any revocable
    beneficiary designation contained in a then existing written
    contract owned by one party that provides for the payment of any
    death benefit to the other party."   However, Code § 20-111.1(D),
    the subsection at issue, provides that
    [if Code § 20-111.1(A)] is preempted by federal
    law with respect to the payment of any death
    benefit, a former spouse who, not for value,
    receives the payment of any death benefit that
    the former spouse is not entitled to under this
    section is personally liable for the amount of
    the payment to the person who would have been
    entitled to it were this section not preempted.
    In contrast to these statutory provisions, the Federal
    Employees' Group Life Insurance Act (FEGLIA), 5 U.S.C. § 8701 et
    seq. (2006 & Supp. II 2008), contains an order of precedence
    that directs to whom benefits under a FEGLI policy are paid:
    [T]he amount of group life insurance and group
    accidental death insurance in force on an
    employee at the date of his death shall be paid,
    on the establishment of a valid claim, to the
    person or persons surviving at the date of his
    death, in the following order of precedence:
    First, to the beneficiary or beneficiaries
    designated by the employee in a signed and
    witnessed writing received before death in the
    employing office . . . .
    Second, if there is no designated
    beneficiary, to the widow or widower of the
    employee.
    5 U.S.C. § 8705(a).   FEGLIA also contains a preemption
    provision, which states:
    The provisions of any contract under this
    chapter [5 U.S.C. § 8701 et seq.] which relate to
    the nature or extent of coverage or benefits
    (including payments with respect to benefits)
    shall supersede and preempt any law of any State
    or political subdivision thereof, or any
    regulation issued thereunder, which relates to
    group life insurance to the extent that the law
    or regulation is inconsistent with the
    contractual provisions.
    5 U.S.C. § 8709(d)(1). 1
    1
    The "contractual provisions" referenced in 5 U.S.C.
    § 8709(d)(1) with which state law must be consistent are simply
    the provisions of FEGLIA. See O'Neal v. Gonzalez, 
    839 F.2d 1437
    , 1440 (11th Cir. 1988) (noting that the insurance policy is
    not a traditional contract between an insured and the insurer
    but a federal policy governed by federal law). Section
    8709(d)(1) "broadly preempts any state law that is inconsistent
    with the FEGLIA master policy." Metropolitan Life Ins. Co. v.
    Christ, 
    979 F.2d 575
    , 579 (7th Cir. 1992).
    2
    Because Congress intended for FEGLI benefits to be paid and
    to belong to a designated beneficiary, we conclude that FEGLIA
    preempts Code § 20-111.1(D).   Therefore, we will reverse the
    circuit court's judgment.
    FACTS AND PROCEEDINGS
    The relevant facts are not in dispute.     In December 1996,
    Warren Hillman (Warren) named Maretta, his wife at the time, as
    the beneficiary of his FEGLI policy.    The two divorced in
    December 1998 and Warren married Hillman in October 2002.
    Warren, however, never changed the beneficiary designation in
    his FEGLI policy.   Hillman and Warren were still married when,
    in July 2008, Warren died.   After her husband's death, Hillman
    filed a claim for benefits under Warren's FEGLI policy but was
    told the proceeds would be distributed to Warren's designated
    beneficiary, Maretta.   Maretta filed a claim for and received
    the death benefits under the FEGLI policy in the amount of
    $124,558.03.
    Hillman then filed an action against Maretta, claiming that
    pursuant to Code § 20-111.1(D), Maretta was liable to her for
    the death benefits received as the beneficiary of Warren's FEGLI
    policy.   Hillman sought an order directing Maretta to pay those
    proceeds to Hillman or, alternatively, a judgment against
    Maretta in the amount received from the FEGLI policy.    Maretta
    filed a demurrer and plea in bar.     Citing numerous federal
    3
    cases, Maretta claimed that Code §§ 20-111.1(A) and -111.1(D)
    are preempted by 5 U.S.C. §§ 8705 and 8709 because the state
    statutes grant FEGLI benefits to someone other than the named
    beneficiary in violation of FEGLIA's terms.   In a letter
    opinion, the circuit court overruled Maretta's demurrer and plea
    in bar, concluding that Code § 20-111.1(D) is not preempted by
    FEGLIA.   Hillman then moved for summary judgment.   Finding no
    material facts in dispute, the circuit court granted Hillman's
    motion and entered judgment against Maretta in the amount of
    $124,558.03.
    We granted Maretta this appeal.    The sole issue is whether
    the circuit court erred in determining that Hillman's claim
    under Code § 20-111.1(D) is not preempted by FEGLIA.    That issue
    is a question of law reviewed de novo on appeal.     See Johnson v.
    Hart, 
    279 Va. 617
    , 623, 
    692 S.E.2d 239
    , 242 (2010).
    ANALYSIS
    4
    The Supremacy Clause in the United States Constitution
    provides that the laws of the United States "shall be the
    supreme law of the land . . . any thing in the Constitution or
    laws of any state to the contrary notwithstanding."   U.S. Const.
    art. VI, cl. 2.   Accordingly, state laws in conflict with
    federal law are "without effect."    Altria Group, Inc. v. Good,
    
    555 U.S. 70
    , 76 (2008) (internal quotation marks omitted).    The
    preemption doctrine "has its roots" in the Supremacy Clause and
    "requires us to examine congressional intent."    Fidelity Fed.
    Sav. & Loan Ass'n v. de la Cuesta, 
    458 U.S. 141
    , 152 (1982).
    " '[T]he purpose of Congress is the ultimate touchstone' in
    every pre-emption case."   Altria Group, 555 U.S. at 76 (quoting
    Medtronic, Inc. v. Lohr, 
    518 U.S. 470
    , 485 (1996)).
    "Pre-emption may be either express or implied, and is
    compelled whether Congress' command is explicitly stated in the
    statute's language or implicitly contained in its structure and
    purpose."   de la Cuesta, 458 U.S. at 152-53 (internal quotation
    marks omitted).   Even when Congress has stopped short of totally
    displacing state law in a specific area, state law is
    nevertheless preempted "to the extent that it actually conflicts
    with federal law.   Such a conflict arises when compliance with
    both federal and state regulations is a physical impossibility,
    or when state law stands as an obstacle to the accomplishment
    and execution of the full purposes and objectives of Congress."
    5
    Id. at 153 (citations and internal quotation marks omitted); see
    also, Dugan v. Childers, 
    261 Va. 3
    , 8, 
    539 S.E.2d 723
    , 725
    (2001) (" 'The pertinent questions are whether the right as
    asserted conflicts with the express terms of federal law and
    whether its consequences sufficiently injure the objectives of
    the federal program to require nonrecognition.' ") (quoting
    Hisquierdo v. Hisquierdo, 
    439 U.S. 572
    , 583 (1979));
    Metropolitan Life Ins. Co. v. Potter, 
    533 So. 2d 589
    , 591 (Ala.
    1988) ("Preemption may occur from explicit preemptive language
    in a statute, from implied congressional intent, or where state
    law stands as an obstacle to the accomplishment of the full
    purposes and objectives of Congress.").   While there is a
    presumption against preemption "in areas of traditional state
    regulation such as family law," Egelhoff v. Egelhoff, 
    532 U.S. 141
    , 151 (2001), "[the] relative importance to the State of its
    own law is not material when there is a conflict with a valid
    federal law, for the Framers of our Constitution provided that
    the federal law must prevail."   Ridgway v. Ridgway, 
    454 U.S. 46
    ,
    54 (1981) (internal quotation marks omitted).
    In addition to the order of precedence set forth in 5
    U.S.C. § 8705(a) and the preemption provision in 5 U.S.C.
    § 8709(d)(1), FEGLIA and the regulations promulgated thereunder
    contain provisions relevant to the specific preemption question
    before us.   Pursuant to 5 C.F.R. § 870.802(f), an insured under
    6
    a FEGLI policy can change his or her beneficiary "at any time
    without the knowledge or consent of the previous beneficiary.
    This right cannot be waived or restricted." 2    Id.   The insured's
    beneficiary designation takes precedence over any court order
    for divorce, annulment, or separation unless that order has been
    received by the appropriate office prior to the insured's death.
    5 U.S.C. § 8705(e); 5 C.F.R. § 870.801(d).      In addition, any
    "designation, change, or cancellation of beneficiary in a will
    or any other document not witnessed and filed as required by [5
    C.F.R. § 870.802] has no legal effect with respect to [FEGLI]
    benefits."   5 C.F.R § 870.802(c).
    Contrary to these provisions, Code § 20-111.1(A) revokes a
    beneficiary designation upon entry of a decree of annulment or
    divorce from the bond of matrimony and thus alters the order of
    precedence in 5 U.S.C. § 8705(a), which directs payment of FEGLI
    benefits first to the designated beneficiary regardless of
    marital status.   As the parties acknowledged before the circuit
    court, FEGLIA preempts Code § 20-111.1(A).      See Metropolitan
    Life Ins. Co. v. Bell, 
    924 F. Supp. 63
    , 65 (E.D. Tex. 1995)
    (holding that 5 U.S.C. § 8709(d)(1) "certainly preempts any
    direct payment to anyone other than a listed beneficiary when a
    beneficiary is actually designated").
    2
    "Federal regulations have no less pre-emptive effect than
    federal statutes." de la Cuesta, 458 U.S. at 153.
    7
    Unlike Code § 20-111.1(A), Code § 20-111.1(D) does not
    alter the direct payment of FEGLI benefits to a designated
    beneficiary.   Instead, it grants a third party the right to
    recover those benefits from a designated beneficiary who is the
    former spouse of the insured.    Code § 20-111.1(D).   If Congress
    intended for FEGLI benefits to belong to the designated
    beneficiary to the exclusion of all others, then Code § 20-
    111.1(D) "stands as an obstacle to the accomplishment and
    execution of the full power and objectives of Congress" and is
    therefore preempted by FEGLIA.    de la Cuesta, 458 U.S. at 153.
    Hillman argues, and courts have generally agreed, that
    FEGLIA manifests a congressional intent for administrative
    convenience.   See, e.g., Kidd v. Pritzel, 
    821 S.W.2d 566
    , 569-70
    (Mo. Ct. App. 1991) (holding that purpose of 5 U.S.C. § 8705 is
    "to provide for the speedy and economical settlement of claims")
    (citing cases); cf. Egelhoff, 532 U.S. at 148 (stating that the
    principal goal of Employee Retirement Income Security Act is to
    provide "a set of standard procedures to guide processing of
    claims and disbursement of benefits") (internal quotation marks
    omitted).   But many courts have concluded that Congress also
    intended to grant an insured the right to name without
    restriction, and to the exclusion of all others, the person who
    will receive the benefits from a FEGLI policy.    See, e.g.,
    Metropolitan Life Ins. Co. v. Zaldivar, 
    413 F.3d 119
    , 120-21
    8
    (1st Cir. 2005) (FEGLIA preempts the imposition of a
    constructive trust on FEGLI proceeds once paid); Metropolitan
    Life Ins. Co. v. Christ, 
    979 F.2d 575
    , 578-79 (7th Cir. 1992)
    (same); O'Neal v. Gonzalez, 
    839 F.2d 1437
    , 1440 (11th Cir. 1988)
    ("Congress intended to establish . . . for the benefit of
    designated beneficiaries, an inflexible rule that the
    beneficiary . . . would receive the policy proceeds, regardless
    of other documents or the equities in a particular case.").
    Most relevant is the decision of the Supreme Court of the United
    States in Ridgway.   Although Ridgway involved the Servicemen's
    Group Life Insurance Act (SGLIA), both FEGLIA and SGLIA contain
    identical "order of precedence" provisions.     Compare 5 U.S.C.
    § 8705(a) with 38 U.S.C. § 1970(a).    Regulations promulgated
    pursuant to SGLIA are also similar to those under FEGLIA.      See
    38 C.F.R. § 9.4(3)(b) (change in beneficiary may be made at any
    time).   We thus agree with those courts that have considered
    Ridgway to be "highly persuasive, if not binding, in construing
    [FEGLIA]."   See Zaldivar, 413 F.3d at 120 (citing cases in
    support).
    In Ridgway, the insured serviceman named his wife as the
    beneficiary of his SGLIA benefits.    454 U.S. at 48.   When the
    parties subsequently obtained a divorce, the state-law judgment
    ordered the insured to keep in force any existing life insurance
    policies for the benefit of his children.     Id.   The insured
    9
    remarried and, contrary to the command of the divorce order,
    changed the policy's beneficiary designation so that the
    proceeds would be paid pursuant to the statutory order of
    precedence set forth in 38 U.S.C. § 770(a), i.e., to his widow.
    Id.   Both the widow and ex-wife, the latter on behalf of the
    insured's children, filed claims for the SGLIA policy proceeds.
    Id. at 49.   The ex-wife also filed suit, asking that a
    constructive trust be placed on any proceeds paid to the widow.
    Id.   The Supreme Judicial Court of Maine concluded that the
    widow should be named as the constructive trustee of the policy
    benefits and directed that the benefits be paid to the ex-wife
    on behalf of the insured's children.    Id. at 50 (citing Ridgway
    v. Prudential Ins. Co. of America, 
    419 A.2d 1030
    , 1035 (Me.
    1980)).
    On a writ of certiorari, the Supreme Court first described
    the history and terms of SGLIA, including its specified order of
    precedence for paying benefits, 38 U.S.C. § 770(a), and its
    anti-attachment provision.   Id. at 52-53.   The latter shielded
    policy payments from creditors' claims and from "'attachment,
    levy, or seizure by or under any legal or equitable process
    whatever, either before or after receipt by the beneficiary.' "
    Id. (quoting 38 U.S.C. § 770(g)).    Noting that "a state divorce
    decree, like other law governing the economic aspects of
    domestic relations, must give way to clearly conflicting federal
    10
    enactments," the Court then turned to its previous decision in
    Wissner v. Wissner, 
    338 U.S. 655
     (1950).    Ridgway, 454 U.S. at
    55.
    In Wissner, the trial court held that benefits paid under
    the National Service Life Insurance Act (NSLIA), which allowed
    an insured to designate and change a beneficiary and contained
    an anti-attachment provision, were community property.     Wissner,
    338 U.S. at 658-59.   Although the insured service member named
    his parents as beneficiaries of his NSLIA policy, the trial
    court nevertheless directed that proceeds be paid to the
    insured's widow.   Id. at 657-58.    The Supreme Court in Wissner
    reversed, finding that the trial court's judgment "nullifie[d]
    the soldier's choice and frustrate[d] the deliberate purpose of
    Congress."   Id. at 659.
    Quoting that language from Wissner, the majority in Ridgway
    then held:
    The present case, we feel, is controlled by
    Wissner. [J]ust as . . . in Wissner, the insured
    service member possesses the right freely to
    designate the beneficiary and to alter that
    choice at any time by communicating the decision
    in writing to the proper office. Here, as there,
    it appropriately may be said: "Congress has
    spoken with force and clarity in directing that
    the proceeds belong to the named beneficiary and
    no other."
    Ridgway, 454 U.S. at 55-56 (quoting Wissner, 338 U.S. at 658).
    Finding that a state law imposing a constructive trust on SGLIA
    benefits was preempted by SGLIA, the Court explained: "Federal
    11
    law and federal regulations bestow upon the service member an
    absolute right to designate the policy beneficiary.    That right
    is personal to the member alone.     [O]nly [the insured] had the
    power to create and change a beneficiary interest in his SGLIA
    insurance."   Id. at 59-60.
    Under a separate heading, the Supreme Court then held that
    placing a constructive trust on the policy proceeds was also
    inconsistent with SGLIA's anti-attachment provision.    Id. at 60-
    62.   Notably, the Court pointed out that it had similarly
    invoked NSLIA's identical anti-attachment provision as an
    independent ground for the result reached in Wissner.     Id. at
    60.
    In light of the virtually identical language used in FEGLIA
    and SGLIA, we conclude pursuant to Ridgway that it is Congress'
    intent that "only [the insured] [has] the power to create and
    change a beneficiary interest," that the right to do so cannot
    be waived or restricted, and that the FEGLI benefits belong to
    the named beneficiary.   Ridgway, 454 U.S. at 60; see Christ, 979
    F.2d at 579 (state's divorce decree and constructive trust
    conflicted with the rights of the insured specified under
    FEGLIA).   Just as with SGLIA, "Congress has spoken with force
    and clarity in directing that the [FEGLI] proceeds belong to the
    12
    named beneficiary and no other." 3       See id. at 56 (emphasis
    added).      That is, Congress did not intend merely for the named
    beneficiary in a FEGLI policy to receive the proceeds, only then
    to have them subject to recovery by a third party under state
    law.       Simply put, "no persons other than [the beneficiary] have
    an interest in the policy benefits pursuant to FEGLIA."
    Metropolitan Life Ins. Co. v. Armstrong-Lofton, 
    19 F. Supp. 2d 1134
    , 1137 (C.D. Cal. 1998); see also O'Neal, 839 F.2d at 1440
    (Congress' intent under FEGLIA was to establish an "inflexible
    rule" that only the beneficiary would receive the policy
    proceeds, "regardless of other documents or the equities in a
    particular case.").      Code § 20-111.1(D), by making liable "a
    former spouse who, not for value, receives the payment of any
    death benefit that the former spouse is not entitled to under"
    Code § 20-111.1(A), "create[s] a beneficiary interest" in the
    policy proceeds for someone other than the named insured.
    Ridgway, 454 U.S. at 60.      In other words, Code § 20-111.1(D)
    "nullifies the [insured's] choice and frustrates the deliberate
    purpose of Congress."       Wissner, 338 U.S. at 659.   Thus, Code
    3
    In fact, Congress' preemptive intent is more apparent in
    FEGLIA than in SGLIA, which contains no provision similar to 5
    U.S.C. § 8709(d)(1). See Potter, 533 So.2d at 594 (holding that
    given FEGLIA's express preemption provision, it is even more
    appropriate to conclude that Congress "'has spoken with force
    and clarity in directing that the proceeds belong to the named
    beneficiary and no other'") (quoting Ridgway, 454 U.S. at 55-
    56).
    13
    § 20-111.1(D) "actually conflicts with federal law [by]
    stand[ing] as an obstacle to the accomplishment and execution of
    the full purposes and objectives of Congress."   de la Cuesta,
    458 U.S. at 153 (internal quotation marks omitted).   Therefore,
    we hold that Code § 20-111.1(D) is preempted by FEGLIA.
    We are aware, as Hillman argues on brief, that our decision
    today stands in contrast to a majority of state court decisions.
    Unlike federal courts, state courts have generally held that
    FEGLIA does not preempt a state-law constructive trust on FEGLI
    proceeds for the benefit of someone other than the named
    beneficiary.   See generally McCord v. Spradling, 
    830 So. 2d 1188
    ,
    1202 (Miss. 2002) (citing cases and finding persuasive state
    court holdings that the "distinction between beneficiary status
    and ultimate equitable entitlement obviates any issue of federal
    preemption of state-court action"); Fagan v. Chaisson, 
    179 S.W.3d 35
    , 42 (Ct. App. Tex. 2005) (citing cases); but see,
    Potter, 533 So.2d at 593 (holding that FEGLIA preempted state
    court divorce judgment ordering insured to maintain ex-wife as
    beneficiary of existing life insurance policies).   In doing so,
    however, these courts have misconstrued Ridgway, specifically
    its reliance on Wissner, and the separate, independent
    discussion of SGLIA's anti-attachment provision.    See Christ,
    979 F.2d at 581 ("SGLIA's anti-attachment provision . . . was a
    separate ground" for finding preemption); Metropolitan Life Ins.
    14
    Co. v. McShan, 
    577 F. Supp. 165
    , 169 (N.D. Cal. 1983) ("In both
    Wissner and Ridgway the existence of an anti-attachment
    provision was an independent basis upon which the Supreme Court
    found preemption.").   In Fagan, for example, the court stated
    that "Ridgway was decided on two points," the first being that
    SGLIA's order of precedence for the payment of benefits merely
    conferred a right on the insured to designate a beneficiary.
    179 S.W.3d at 44; see also Kidd, 821 S.W.2d at 570 (same).      That
    interpretation is incorrect.   The Court's first holding in
    Ridgway, made in reliance on its decision in Wissner, emphasized
    that the insured's right to designate a beneficiary and to alter
    that choice at any time evinced Congress' intent for the policy
    proceeds to "belong to the named beneficiary and no other." 4
    Ridgway, 454 U.S. at 56 (internal quotation marks omitted).
    Hillman, and the courts on which she relies, fail to account for
    Ridgway's reliance on Wissner.   According to the Supreme Court,
    Wissner controlled the outcome in Ridgway, id. at 55, and we
    conclude that Ridgway, in turn, controls the result in the case
    now before us.
    State courts distinguishing Ridgway also fail to
    acknowledge what is apparent from a plain reading of the
    decision, i.e., that its holding based on SGLIA's anti-
    4
    The court in Fagan also mistakenly referred to the second
    holding in Ridgway based on SGLIA's anti-attachment provision as
    the "most important[]." Fagan, 179 S.W.2d at 44.
    15
    attachment provision was a separate, independent basis for the
    result.   See, e.g., McCord, 830 So.2d at 1197 (distinguishing
    Ridgway solely on the grounds that SGLIA contained an anti-
    attachment provision).   Ridgway's discussion of SGLIA's anti-
    attachment provision began with the statement: the "imposition
    of a constructive trust is also inconsistent with the anti-
    attachment provision."   Ridgway, 454 U.S. at 60 (emphasis
    added).   In other words, Ridgway is not distinguishable on the
    basis that FEGLIA does not contain an anti-attachment provision.
    In sum, the circuit court erred in concluding that Code
    § 20-111.1(D) is not preempted by FEGLIA.
    CONCLUSION
    For these reasons, we will reverse the judgment of the
    circuit court.   Because we conclude that FEGLIA preempts Code
    § 20-111.1(D), we will enter judgment for Maretta.
    Reversed and final judgment.
    JUSTICE McCLANAHAN, with whom JUSTICE MILLETTE joins,
    dissenting.
    I.
    The constitutional standard governing preemption under the
    Supremacy Clause, as contained in Article VI of the Constitution
    of the United States, presents a "'high threshold'" for the
    invalidation of a state statute alleged to conflict with federal
    16
    law.    Chamber of Commerce of the U.S. v. Whiting, 
    563 U.S.
    ___,
    ___, 
    131 S. Ct. 1968
    , 1985 (2011) (quoting Gade v. National Solid
    Wastes Mgmt. Ass'n, 
    505 U.S. 88
    , 110 (1992) (Kennedy, J.,
    concurring in part and concurring in judgment)).     Accordingly,
    courts are to address preemption claims "with the starting
    presumption that Congress does not intend to supplant state
    law."     New York State Conf. of Blue Cross & Blue Shield Plans v.
    Travelers Ins. Co., 
    514 U.S. 645
    , 654 (1995).     The threshold for
    invoking preemption is even higher where, as here, the state
    statute at issue represents a state legislature's exercise of
    its police power in the area of domestic relations.     Rose v.
    Rose, 
    481 U.S. 619
    , 625 (1987); Hisquierdo v. Hisquierdo, 
    439 U.S. 572
    , 581 (1979); United States v. Yazell, 
    382 U.S. 341
    , 352
    (1966).    That is because " 'the whole subject of domestic
    relations . . . belongs to the laws of the States and not to the
    laws of the United States.' "     Rose, 481 U.S. at 625 (quoting In
    re Burrus, 
    136 U.S. 586
    , 593-94 (1890)).
    Thus, as the United States Supreme Court has stated,
    " 'when state family law has come into conflict with a federal
    statute,' " courts should limit their Supremacy Clause review to
    a determination of " 'whether Congress has "positively required
    by direct enactment" that state law be pre-empted.' "     Id.
    (quoting Hisquierdo, 439 U.S. at 581 (quoting Wetmore v. Markoe,
    
    196 U.S. 68
    , 77 (1904))).     Indeed, "[b]efore a state law
    17
    governing domestic relations will be overridden," the Supreme
    Court has further explained, the state law " 'must do "major
    damage" to "clear and substantial" federal interests.' "   Id.
    (quoting Hisquierdo, 439 U.S. at 581 (quoting Yazell, 382 U.S.
    at 352)) (emphasis added). 1
    In my opinion, this high threshold for imposing preemption
    in the instant case has not been met.   That is, I do not believe
    Code § 20-111.1(D) (triggered, itself, upon federal preemption
    of subsection A of the statute) is preempted by the Federal
    Employees' Group Life Insurance Act (FEGLIA), 5 U.S.C. § 8701 et
    seq. (2006 & Supp. II 2008).
    II.
    Subsection A of Code § 20-111.1 provides, in relevant
    part: "Upon the entry of a decree of annulment or divorce from
    the bond of matrimony . . . any revocable beneficiary
    designation contained in a then existing written contract owned
    by one party that provides for the payment of any death benefit
    to the other party is revoked. A death benefit prevented from
    1
    See Brandon v. Travelers Insur. Co., 
    18 F.3d 1321
    , 1326
    (5th Cir. 1994) (observing in preemption case that "[f]ederal
    respect for state domestic relations law has a long and
    venerable history" and that "[w]hen courts face a potential
    conflict between state domestic relations law and federal law,
    the strong presumption is that state law should be given
    precedence" because "family relations [law] has been a
    sacrosanct enclave" (emphasis added)).
    18
    passing to a former spouse by this section shall be paid as if
    the former spouse had predeceased the decedent. . . ." 2
    In revoking the beneficiary designation of a former spouse
    to a life insurance policy upon divorce, Code § 20-111.1(A)
    operates as a companion to the revocation-by-divorce statute in
    Virginia applicable to wills of former spouses, Code § 64.1-59. 3
    Addressing the latter statute, this Court has explained that its
    passage was "a statutory declaration of public policy concerning
    wills of divorced testators, which provided . . . that a
    divorced spouse is to be denied any benefits under a will
    executed prior to divorce" based on the testator's presumed
    change of intent upon divorce.   Papen v. Papen, 
    216 Va. 879
    ,
    882-83, 
    224 S.E.2d 153
    , 155 (1976).   "The General Assembly, in
    evaluating the advisability of [enacting Code § 64.1-59],
    undoubtedly concluded that the number of forgetful testators who
    would be benefited by the statute far exceeded the number of
    careful testators who might be inconvenienced by its enactment."
    2
    The terms of Code § 20-111.1(A) are expressly inapplicable
    "(i) to the extent a decree of annulment or divorce from the
    bond of matrimony, or a written agreement of the parties
    provides for a contrary result as to specific death benefits, or
    (ii) to any trust or any death benefit payable to or under any
    trust," none of which is presented in this case. Code § 20-
    111.1(C).
    3
    Code § 64.1-59 provides, in relevant part: "If, after
    making a will, the testator is divorced a vinculo matrimonii or
    his marriage is annulled, the divorce or annulment revokes any
    disposition or appointment of property made by the will to the
    former spouse. . . ."
    19
    Id. at 883, 224 S.E.2d at 155-56.        The General Assembly no doubt
    adhered to a similar conclusion in subsequently enacting Code
    § 20-111.1(A) with its analogous revocation of a designation of
    a former spouse as a beneficiary on a life insurance policy upon
    divorce.   See generally Alan S. Wilmit, Note, Applying the
    Doctrine of Revocation by Divorce to Life Insurance Policies, 73
    Cornell L. Rev. 653 (1988).
    As appellant correctly asserts, however, Code § 20-
    111.1(A), as applicable to the facts in this case, is
    inconsistent with FEGLIA's directive as to whom life insurance
    benefits under a FEGLIA policy "shall be paid," as set forth in
    5 U.S.C. § 8705(a).    Under the 5 U.S.C. § 8705(a) statutory
    "order of precedence," the first payee of the life insurance is
    "the beneficiary or beneficiaries designated by the employee in
    a signed and witnessed writing received before death in the
    employing office . . . ." 4   Id.    Consequently, in this case,
    pursuant to 5 U.S.C. § 8705(a), the FEGLI policy holder's former
    spouse, appellant, as the designated beneficiary on the policy,
    received payment of the insurance proceeds through the federal
    Office of Personnel Management (the federal agency that
    administers FEGLIA).   Under Code § 20-111.1(A), the policy
    4
    Several other alternative payees are then listed under 5
    U.S.C. § 8705(a) in order of priority in the event there is no
    designated beneficiary, the first of these being the widow or
    widower of the deceased policy holder.
    20
    holder's widow, appellee, would have received the insurance
    proceeds from her deceased husband's FEGLI policy.
    Addressing such conflicts with state law, FEGLIA provides
    under 5 U.S.C. § 8709(d)(1) that "[t]he provisions of any
    contract under this chapter [5 USCS §§ 8701 et seq.] which
    relate to the nature or extent of coverage or benefits
    (including payments with respect to benefits) shall supersede
    and preempt any law of any State or political subdivision
    thereof, or any regulation issued thereunder, which relates to
    group life insurance to the extent that the law or regulation is
    inconsistent with the contractual provisions."
    The majority thus concludes, and I agree, that Code § 20-
    111.1(A) is therefore preempted under the express terms of 5
    U.S.C. § 8709(d)(1), as Code § 20-111.1(A) would otherwise
    negate the payment dictated by 5 U.S.C. § 8705(a) where, as
    here, the designated beneficiary was a former spouse, and the
    designation was made prior to the divorce of the former spouse
    and the federal employee policy holder.
    III.
    The issue on appeal is thus whether Code § 20-111.1(D),
    which is triggered upon the federal preemption of subsection A
    of the statute, is itself preempted under FEGLIA.
    The General Assembly amended Code § 20-111.1 in 2007 by
    adding subsection D to the statute, which provides as follows:
    21
    "If this section is preempted by federal law with respect to the
    payment of any death benefit, a former spouse who, not for
    value, receives the payment of any death benefit that the former
    spouse is not entitled to under this section is personally
    liable for the amount of the payment to the person who would
    have been entitled to it were this section not preempted."     See
    2007 Acts ch. 306.
    Passage of this amendment no doubt reflects the General
    Assembly's recognition that subsection A of Code § 20-111.1 was
    preempted by FEGLIA pursuant to 5 U.S.C. § 8709(d)(1).   The
    General Assembly dealt with this impediment to implementation of
    its public policy embodied in subsection A's revocation-by-
    divorce provision for life insurance policies by establishing,
    in subsection D of Code § 20-111.1, an equitable remedy in favor
    of a third party who otherwise would have been entitled to
    receive the insurance proceeds pursuant to subsection A –- in
    this case, the decedent's widow.    Under the new provision, the
    former spouse, as the designated beneficiary, is made personally
    liable to the third party for an amount equal to the insurance
    proceeds paid to the former spouse upon the death of the federal
    employee policy holder.
    Thus, as the majority acknowledges, unlike subsection A,
    subsection D "does not alter the direct payment of FEGLI
    benefits to a designated beneficiary" in establishing the
    22
    equitable remedy against the former spouse.   After assessing
    this key factor against the limited federal interest implicated
    under 5 U.S.C. § 8705(a)'s payment provision for FEGLI benefits,
    I believe that Code § 20-111.1(D) does no "major damage" to that
    federal interest.    Rose, 481 U.S. at 625 (citations and internal
    quotation marks omitted).
    Viewed through the prism of our governing standard of
    review, FEGLIA simply does not evince congressional intent to
    shield a former spouse from liability against a third party
    claim involving FEGLI proceeds that have already been paid to
    the former spouse.   Rather, as the majority also acknowledges, 5
    U.S.C. § 8705(a)'s "order of precedence" for the payment of
    FEGLI benefits was enacted for the purpose of providing
    "administrative convenience" for the federal Office of Personnel
    Management (OPM) and the insurer in processing claims and
    distributing benefits.   See Kidd v. Pritzel, 
    821 S.W.2d 566
    ,
    568-70 (Mo. Ct. App. 1991) (detailing the legislative history of
    5 U.S.C. § 8705 and cited by the majority).   Addressing this
    point, the Missouri Court of Appeals in Kidd aptly explains that
    [section] 8705 serves a valuable and worthwhile
    purpose by keeping the OPM and the insurance company
    out of legal entanglements. It fulfills the
    congressional intention by reducing their
    administrative and legal hassles. Regardless of what
    claims are brought to recover the proceeds once they
    are paid out to the designated beneficiary, the
    purpose of § 8705 has been served. Neither the
    insurance carrier nor the government can be burdened
    23
    by participation in a state judicial proceeding to
    recover the proceeds.
    Id. at 572 (emphasis added).    And this administrative
    convenience – the ability of the OPM and the insurer to simply
    pay the life insurance proceeds to the named beneficiary as
    directed by 5 U.S.C. § 8705, close the file, and move on to the
    next claim, as they did in this case – remains completely intact
    with the application of Code § 20-111.1(D).    Accordingly, FEGLIA
    should not be held to preempt Code § 20-111.1(D).
    I thus agree with the majority of state courts in other
    jurisdictions that have addressed the issue of preemption under
    FEGLIA and have similarly concluded that their state domestic
    relations laws, in creating an equitable claim for an amount
    equal to the FEGLI insurance proceeds that have been paid to the
    named beneficiary, are not preempted by FEGLIA.    See, e.g.,
    Fagan v. Chaisson, 
    179 S.W.3d 35
    , 42 (Tex. App. 2005); McCord v.
    Spradling, 
    830 So. 2d 1188
    , 1203 (Miss. 2002); Sedarous v.
    Sedarous, 
    666 A.2d 1362
    , 1363 (N.J. Super. Ct. App. Div. 1995);
    Eonda v. Affinito, 
    629 A.2d 119
    , 123 (Pa. Super. Ct. 1993);
    Kidd, 821 S.W.2d at 575; In re Estate of Anderson, 
    552 N.E.2d 429
    , 434-35 (Ill. App. Ct. 1990); Roberts v. Roberts, 
    560 S.W.2d 438
    , 439-40 (Tex. App. 1977).
    Unlike my colleagues, my view of congressional intent
    reflected in FEGLIA is not altered by Ridgway v. Ridgway, 454
    
    24 U.S. 46
     (1981), or Wissner v. Wissner, 
    338 U.S. 655
     (1950) (the
    case that the United States Supreme Court relied upon in
    deciding Ridgway), where the Court imposed post-payment
    protection for the life insurance proceeds paid to the
    respective armed services member's designated beneficiary in
    each of those cases.      I believe Ridgway, a Servicemen's Group
    Life Insurance Act (SGLIA) case, and Wissner, a National Service
    Life Insurance Act (NSLIA) case, are distinguishable from the
    instant FEGLIA case.
    NSLIA, as the predecessor to SGLIA, placed into effect a
    system of life insurance benefits specifically designed for our
    armed services members shortly before the beginning of World War
    II.   It then lapsed at the end of the Korean War, when private
    commercial insurance generally became available for service
    members.   Ridgway, 454 U.S. at 50-51.      SGLIA was subsequently
    enacted in response to private carriers' restrictions on
    coverage for service members as a result of the escalating
    Vietnam conflict.       Id. at 50.   Like federal employees under
    FEGLIA, armed services members possessed the right under both
    NSLIA and SGLIA to designate the beneficiaries of their choice.
    Id. at 55-56.   Both NSLIA and SGLIA, however, contained an
    identical anti-attachment provision that was not included in
    FEGLIA.    Id. at 60.    Under the anti-attachment provision,
    "[p]ayments to the named beneficiary 'shall be exempt from the
    25
    claims of creditors, and shall not be liable to attachment,
    levy, or seizure by or under any legal or equitable process
    whatever, either before or after receipt by the beneficiary
    . . . .' "    Wissner, 338 U.S. at 659 (quoting 38 U.S.C. § 816)
    (emphasis added).
    Assessing the beneficiary designation and anti-attachment
    provisions together, the Supreme Court in Ridgway explained:
    " 'Possession of government insurance, payable to the relative
    of his choice, might well directly enhance the morale of the
    serviceman.   The exemption provision is his guarantee of the
    complete and full performance of the contract to the exclusion
    of conflicting claims.    The end is a legitimate one within the
    congressional powers over national defense, and the means are
    adapted to the chosen end.' "    Ridgway, 454 U.S. at 56-57
    (quoting Wissner, 338 U.S. at 660-61 (emphasis added)).     The
    Supreme Court then concluded its analysis by explaining that,
    with the anti-attachment clause, "Congress has insulated the
    proceeds of SGLIA insurance from attack or seizure by any
    claimant other than the beneficiary designated by the insured or
    the one first in line under the statutory order of precedence.
    That is Congress' choice. It remains effective until legislation
    providing otherwise is enacted."      Id. at 63.
    FEGLIA, by contrast, simply made group life insurance
    available to federal employees so as to " 'appl[y] to Government
    26
    service the best practices of progressive, private employers.' "
    Fagan, 179 S.W.3d at 45 (quoting Kidd, 821 S.W.2d at 568; some
    internal quotation marks omitted).   Manifestly, its passage was
    "not attended by the exigenc[ies] that motivated" Congress when
    passing NSLIA and SGLIA in the context of national defense.      Id.
    The omission of an anti-attachment clause in FEGLIA should thus
    be viewed as answering in the negative the question of whether
    Congress intended to preempt a state law like Code § 20-111.1(D)
    – one that impacts FEGLI benefits, if at all, only after the
    benefits have been paid to the designated beneficiary.    With a
    comprehensive statutory scheme like FEGLIA, such an "omission[]"
    is a "significant one[]."   Mackey v. Lanier Collection Agency &
    Serv., Inc., 
    486 U.S. 825
    , 837 (1988) (addressing absence of
    anti-alienation provisions under ERISA as to welfare benefit
    plans).   As the Texas Court of Appeals stated in an analogous
    FEGLIA case, " '[i]f Congress had desired to totally pre-empt
    all state law claims[,] it would have included an anti-
    attachment provision [in] FEGLIA.    Ridgway expressly stated that
    if Congress chose to avoid the result in that case, it could do
    so by enacting legislation which did not include an anti-
    attachment provision. That is precisely what Congress did when
    it enacted FEGLIA.' "   Fagan, 179 S.W.3d at 45 (quoting Kidd,
    821 S.W.2d at 571); see Sedarous, 666 A.2d at 1367 ("[I]f
    Congress had intended the same immunity of proceeds from state
    27
    court action in FEGLIA as it provided for in SGLIA, it could
    easily have done so by the simple expedient of including SGLIA's
    anti-attachment provision in FEGLIA.").
    I also find support for my position in both federal and
    state court decisions addressing preemption under the federal
    Employee Retirement Income Security Act of 1974 (ERISA), 29
    U.S.C. § 1001 et seq., a statutory scheme more analogous to
    FEGLIA than either NSLIA or SGLIA.
    Like FEGLIA's "order of precedence" under 5 U.S.C.
    § 8705(a) dictating payment of the insurance proceeds to the
    designated beneficiary, ERISA requires payment of life insurance
    benefits provided under an ERISA employee welfare benefit plan
    to the designated beneficiary.   Central States Se. & Sw. Areas
    Pension Fund, Inc. v. Howell, 
    227 F.3d 672
    , 677 (6th Cir. 2000);
    see Kennedy v. Plan Adm'r for DuPont Sav. & Inv. Plan, 
    555 U.S. 285
    , 300 (2009) (holding that the plan administrator must
    distribute benefits according to the plan documents pursuant to
    29 U.S.C. § 1104(a)(1)(D), in order to satisfy ERISA's goal of
    establishing efficiency in benefit administration).   Also like
    FEGLIA, ERISA expressly preempts "all State laws" that "relate
    to" an ERISA plan.   29 U.S.C. § 1144(a).   And, like FEGLIA,
    ERISA contains no anti-attachment or anti-alienation provision
    as to welfare benefit plans, which are the plans under ERISA
    that govern life insurance benefits.   See Mackey, 486 U.S. at
    28
    836-37.    Furthermore, while ERISA does contain an anti-
    alienation provision for pension plans under 29 U.S.C.
    § 1056(d)(1), this provision simply requires each pension plan
    to "provide that benefits provided under the plan may not be
    assigned or alienated."    As such, section 1056(d)(1) is much
    more limited in scope than the anti-attachment provision
    contained in both NSLIA and SGLIA (which, again, is absent from
    FEGLIA).
    Addressing this statutory framework under ERISA, the Sixth
    Circuit held in Central States that ERISA did not preempt the
    imposition of a constructive trust, under state law, on the life
    insurance benefits provided under an ERISA employee welfare
    benefit plan once those benefits had been distributed to the
    designated beneficiary according to the plan documents.     Central
    States, 227 F.3d at 678-79.    More specifically, as the Sixth
    Circuit explained:
    In this case, [appellee] seeks to impose a
    constructive trust on [her former husband's] ERISA
    welfare benefit plan benefits. [He] changed the
    beneficiary designation in accordance with the plan
    documents [thereby removing appellee as the
    beneficiary]. On this issue, our precedents are clear
    – the beneficiary card controls the person to whom the
    plan administrator must pay the benefits. However, we
    hold today that once the benefits have been released
    to the properly designated beneficiary, the district
    court has the discretion to impose a constructive
    trust upon those benefits in accordance with
    applicable state law if equity so requires.
    Id. at 679.
    29
    The Supreme Court of Michigan reached the same conclusion
    in Sweebe v. Sweebe, 
    712 N.W.2d 708
     (Mich. 2006).        There, the
    appellant/former wife and the decedent/former husband entered
    into an agreement at the time of their divorce giving up any
    interest in any insurance policy of the other.      The decedent had
    a life insurance policy governed by ERISA on which he had
    designated appellant as the beneficiary several years before
    their divorce, and never changed the designation after the
    divorce.    Id. at 710.   Appellee, decedent's subsequent
    wife/widow, acting on behalf of the decedent's estate,
    instituted an action under state law seeking to enforce the
    former wife's waiver to any claim to the proceeds from the
    decedent's life insurance policy.      Id.   The Michigan Supreme
    Court held that ERISA did not preempt the estate's state law
    claim to the insurance proceeds, and affirmed the lower court's
    order directing the former wife "to pay an amount equal to the
    insurance proceeds to the decedent's estate."      Id.    In reaching
    its decision, the Court recognized that, "under ERISA
    preemption, Michigan law cannot affect ERISA's determination of
    the proper beneficiary," and "ERISA provides that a plan
    administrator must distribute the proceeds of the insurance
    policy to the named beneficiary."      Id. at 711 (citations
    omitted).   The Court concluded, however, that after the benefits
    are properly distributed under ERISA, as they were there, the
    30
    issue of whether the former wife could "lawfully retain them"
    was an issue "governed exclusively by Michigan law."     Id.
    In Guidry v. Sheet Metal Workers Nat'l Pension Fund, 
    39 F.3d 1078
     (10th Cir. 1994), the Tenth Circuit reached a similar
    conclusion even as to ERISA pension benefits.   There, the Court
    held that, while the anti-alienation provision of ERISA
    precluded a state claim for garnishment against pension benefits
    before their distribution to a plan participant or beneficiary,
    nothing in the legislative scheme protected the benefits
    following their distribution to such participant or beneficiary.
    Id. at 1082-83.   That is, a creditor could "collect directly
    from the participant or beneficiary or, as [there], initiate an
    enforce[ment] procedure against a third-party bank [that held]
    the funds paid to the participant or beneficiary."     Id.; see
    Pardee v. Pardee, 
    112 P.3d 308
    , 315-16 (Okla. Civ. App. 2005)
    (holding that ERISA did not preempt allocation of a percentage
    of the pension plan funds to appellee pursuant to state law
    following distribution of the funds, as the funds "were no
    longer entitled to ERISA protection once [they] were
    distributed"); Hoult v. Hoult, 
    373 F.3d 47
    , 54-55 (1st Cir.
    2004) (holding that the anti-alienation provision under ERISA
    applies to pension funds "only while held by the plan
    administrator and not after they reach the hands of the
    beneficiary"); Wright v. Riveland, 
    219 F.3d 905
    , 919-21 (9th
    31
    Cir. 2000) (same); Trucking Employees of North Jersey Welfare
    Fund, Inc. v. Colville, 
    16 F.3d 52
    , 54-56 (3rd Cir. 1994)
    (same); see also DaimlerChrysler Corp. v. Cox, 
    447 F.3d 967
    , 974
    (6th Cir. 2006) (recognizing principle).
    IV.
    For the above-stated reasons, I would affirm the judgment
    of the circuit court in this case.   In my opinion, the circuit
    court, in a thorough and well-reasoned opinion, correctly
    concluded that Code § 20-111.1(D) is not preempted by FEGLIA.
    Therefore, I dissent from the majority's decision reversing the
    circuit court's judgment.
    32