AUGUST 2026 | 25 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. liability policy will not protect against “professional liability” – i.e., malpractice coverage. That is because such policies typically cover accidental physical harm (to person or property); they also expressly exclude claims of “professional” negligence. Thus, all lawyers should have malpractice insurance (though many may also need commercial liability coverage as well, if they operate a law business). But there is more you should know about malpractice insurance than just that you need it. For instance, most insurance policies are “occurrence”-based while malpractice coverage is “claims-made” coverage. With occurrence-based coverage, a claim is covered if it accrued while the policy was in force – even if it was not reported until after the policy canceled. By contrast, claims-made coverage applies 1) if the claim accrued after the policy inception date and 2) was reported while the policy remains active. This can cause problems for attorneys who let their malpractice coverage lapse or change insurance companies. It is crucial in such cases to have purchased “tail” or extended reporting period (ERP) coverage. It is additionally important for attorneys to understand their duty to report potential claims against their malpractice insurance. Indeed, one of the things we certify each year when we purchase our coverage is that we do not know about any potential malpractice concerns. A failure to report a potential for a claim against the coverage can give the insurer a basis to deny coverage.16 CRIMINAL DEFENSE AND FAMILY LAW INSURANCE CONCERNS One potential “intersection” pertinent to the criminal defense attorney is the connection between insurance coverage and restitution. For instance, one federal statute requires the convicted person to pay restitution to an insurer that has paid a loss; another federal statute reduces restitution by any amount the victim has recovered in a civil proceeding (which usually means an insurance payment).17 The state of Oklahoma has similar statutes affecting the interplay between restitution and insurance coverage. Oklahoma also has a “slayer statute,” 84 O.S. §231, that prevents a murderer from benefiting from the victim’s death. This statute includes within its broad scope: taking as a beneficiary under a life insurance policy. Notably, this statute does not require a conviction.18 While this statute won’t help you defend a murderer, it might help you talk a client out of murder. More seriously, knowledge of §231 could be important to the criminal defense attorney who expects to be paid from insurance proceeds running from the decedent to the alleged killer. What about the family law attorney? As all such practitioners discover, they will be required to advise how certain insurance proceeds may or may not be divided in a divorce decree. All such practitioners must be conversant in insurance coverages such as life, health and disability and how such coverages may be impacted by divorce. Additionally, there are QDRO orders redirecting the payment of proceeds from various assets and accounts which can have at least an indirect effect on certain insurance coverages (such as life insurance and retiree health insurance benefits). There will also be the occasion to advise the client regarding COBRA continuation coverage for health insurance benefits lost in the divorce. Family law attorneys should also know about 15 O.S. §178, which revokes the beneficiary status of a spouse in life insurance contracts, annuities, retirement accounts, and a number of similar arrangements in the event of a divorce or annulment of the marriage (though the former marital partners have the option of renaming the ex as their beneficiary). Not all divorce attorneys know about §178 or that it does not apply to policies governed by federal law such as the various life insurance coverages provided to members of the armed services.19 In one such situation, the parties disputed whether the beneficiary designation was revoked by §178 (or whether a constructive trust was imposed for the benefit of the new spouse) versus whether §178 did not affect the former beneficiary designation such that it was still the ex who was entitled to the proceeds. The insured’s failure to formally designate his true choice of beneficiary after the divorce resulted in the former wife and the current wife splitting up the proceeds after paying two sets of attorneys to litigate the dispute. And now we briefly segue to estate planning. ESTATE PLANNING AND PROBATE LAWYERS ALSO FACE INSURANCE CONCERNS Life insurance is crucial to estate planning and probate. It is thus important for such attorneys to be conversant in products
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