OPINION AND ORDER

HAROLD BAER, JR., United States District Judge.

On September 11, 2001, Arcangel Vazquez ("Arcangel") died in the World Trade Center attack. Sadly, this case arises from a dispute between surviving members of Arcangel's family who claim that they are the sole rightful beneficiary of Arcangel's accidental death insurance policy, which totals $500,000. Following Arcangel's death, American International Life Assurance Company of New York ("AIG") brought this interpleader action to determine the rightful beneficiary. After MG deposited the insurance proceeds with the Clerk of the Court, I dismissed MG from the case. A bench trial was held on November 4, 2002 and November 5, 2002, and the parties' post-trial memoranda were served and filed on November 25, 2002. The decedent's widow, Nancy Vazquez ("Nancy"), and decedent's daughter, Melissa Vazquez ("Melissa") each contend that they are entitled to all of the proceeds from the insurance policy. For the foregoing reasons, Nancy and Melissa Vazquez have each proven by a preponderance of evidence that they were likely named as beneficiaries on the disputed insurance policy. Both, however, have failed to prove that the other was either removed from designation on the policy or otherwise disqualified from receiving the proceeds, thus the proceeds will be split evenly between Nancy and Melissa Vazquez.

I. FINDING OF FACTS

As a preliminary matter, neither Nancy nor Melissa objected to the submission of testimony or other forms of evidence as to personal transactions or communications with the decedent, and therefore they have waived any objection to the use of such evidence. Marlio v. McLaughlin, 288 A.D.2d 97, 98 (1st Dep't 2001); In re Estate of Mastrianni, 55 A.D.2d 784, 785 (3d Dep't 1976); see also Ralley v. O'Connor, 75 N.Y.S. 925, 926 (1st Dep't 1902), affirmed 173 N.Y. 621 (1903) (finding no error in admitting evidence that would have been inadmissible under the Dead Man Statute but for counsel's failure to object). When there is such a waiver, the witness' disqualification by virtue of the Dead Man's Statute is lifted, and the witness' testimony is admissible. See, e.g., In re Rubin's Estate, 237 N.Y.S.2d 563, 563 (Surr.Ct. 1963). Although Nancy Vazquez is the administrator of Arcangel's estate, which would ordinarily render her testimony inadmissible in a claim by or against the estate, In re Kennedy's Estate, 290 N.Y.S.2d 964, (Surr.Ct. 1968), the instant case involves assets that fall outside of his estate and thus the bar to Nancy's testimony is inapplicable.

Melissa Vazquez is the only child of Arcangel and was born to him in 1979 in a marriage that preceded his relationship with Nancy Vazquez. See Melissa Trial Transcript ("TT") at 112, 117. After Melissa's biological mother abandoned them, Melissa lived with Arcangel and her paternal grandmother for the first five years of her life. Id at 112. Following the divorce between Arcangel and his wife, the grandmother was awarded custody and shortly thereafter they moved to Puerto Rico. Id. at 114. Arcangel visited his daughter two or three times a year for about a week and a half each visit. Id. In addition, Melissa would visit Arcangel in New York during the summer. Id. at 115. While Melissa lived with her grandmother, Arcangel would provide some financial assistance in her upbringing and send gifts for occasions such as birthdays and Christmas. Id. at 117. Shortly after the birth of her first child at age 14, Melissa moved with her new baby to New York City to live with her biological mother. Id at 118, 121-22. After two years, she returned to Puerto Rico to live with her grandmother and remained there until 1999. Id at 122-23. Melissa moved back to New York to live with her biological mother but visited with her father from time to time. Id. at 123. Shortly thereafter in 2000, Melissa gave birth to her second child. Id at 122. Whenever possible, Arcangel would give Melissa financial support. See, e.g., at 118, 121, 124; Nancy TT at 158. Monsignor Powers testified that Arcangel appeared to love his daughter very much, despite her relative lack of involvement in his daily life. Monsignor Powers TT at 42-43; see also William TT at 84; Torres TT at 278; Perez TT at 316; Sister Angela TT at 22, 26.

Nancy Vazquez, now a New York City detective, married Arcangel on December 11, 1987, and remained married to him until his death on September 11, 2001. Exhs. 5, 19; Nancy TT at 146. They had met around the time of Nancy's divorce in 1985. Nancy TT at 147. From her prior marriage, Nancy had a 3 month-old son named Miguel, with whom Arcangel developed a lasting relationship. Id at 152. Soon after Arcangel and Nancy married, Arcangel started working in 1988 for the Fiduciary Trust Company, the policy holder of the employee death benefit at issue here. Zoltowski TT at 287. Arcangel and Nancy lived together with her son in Nancy's mother's apartment for about the first two years of their marriage. Id at 149, 153; Torres TT at 266. Although they separated in 1989, Arcangel remained committed and involved in Nancy's and Miguel's lives. Nancy TT at 153-54; Torres TT at 266-67. Arcangel and Nancy reconciled briefly in 1992 and then separated for a second time. Nancy TT at 154. Despite living apart, the two continued to spend time together on weekends, doing such things as going to concerts, dancing, and going to the beach. Id at 156. They resumed living together again from 1994 through about 1995, when they separated a third time. Id at 157. Despite separating a third time, Arcangel sought to stay close to Nancy and her son. Id. at 161; Torres TT at 268. To help provide a father figure in Miguel's life, Nancy, her mother, and Arcangel agreed that Arcangel would live at his mother-in-law's house to be closer to Miguel, and he did so until his death. Nancy TT at 161; Torres TT at 267. In exchange for his room, he agreed to pay $350 per month to cover expenses associated with the house or any expenses with which Nancy needed help. Nancy TT at 168; Torres TT at 270. Nancy moved to Queens following the third separation, and later to the Bronx after she was transferred there by the Police Department. Nancy TT at 161-62. Each time she moved, Arcangel helped move her belongings. Nancy TT at 155, 162; Miguel TT at 261; Perez TT at 314. Between 1996 and the time Arcangel died, Nancy continued to maintain intimate relations with Arcangel and spent her leisure time with Arcangel and her son. She also frequently communicated with Arcangel about Miguel. Nancy TT at 166, 168, 178; Miguel TT at 262, Perez TT at 311-12. In addition, Nancy offered assistance to Arcangel when possible, including emotional support following his father's death, Nancy TT at 177, and health coverage under her insurance plan when Arcangel needed eye surgery. Miguel TT at 261. Nancy and Arcangel shared a joint checking account, from which Nancy would draw checks when necessary, Nancy TT at 173, even though she did not deposit or contribute her earnings into the account. Id at 159-160. Despite the extended length of their separation, Nancy and Arcangel never discussed the possibility of getting divorced, id at 175, and I find no credible evidence to the contrary.

In 1999, Arcangel became concerned that Miguel was not doing well in school and suggested that Miguel stay with him and Miguel's grandmother to reduce his commute to school and to ensure that he got to school. Id at 164; Miguel TT at 248. Nancy agreed to the suggestion and allowed Miguel to live with Arcangel, whom Miguel referred to as "Dad," Miguel TT at 248, and Nancy's mother during the school week. Nancy TT at 164; Miguel TT at 247-48; Torres TT at 271, Perez TT at 312. Arcangel spent a considerable amount of time outside of work participating in church related activities, and often, he brought Miguel with him to attend church, religious retreats, and other church programs for young men. Nancy TT at 165; Miguel TT at 249-250; Torres TT at 272, Sister Angela TT at 33, Monsignor Powers TT at 45. Miguel frequently had heart-to-heart talks with Arcangel, visited him at his work place, and regularly shared meals with him. Miguel TT at 249. Miguel is now a senior in high school with thoughts of going to college. Miguel TT at 263. Although Arcangel never formally adopted Miguel, Arcangel has by all accounts served as a father and role model to him for virtually his entire life.

In regard to the beneficiary designation form, William Vazquez testified that Melissa was always designated as a beneficiary in Arcangel's insurance policy, though he did not know specifically which insurance policies they may have been. William TT at 84. Apparently, Arcangel had made an appointment and spoke with Patricia Zoltowski, the benefits manager at Fiduciary Trust Company, about the possibility of changing the designated beneficiary. Zoltowski TT at 288. At the appointment, Zoltowski gave him the forms needed to make the change. Id. According to Zoltowski, Arcangel informed her that his inquiry was prompted by an issue" regarding his marriage and the fact that he was estranged from his wife. Id Zoltowski did not recall, however, whether Arcangel returned the forms, id at 289, and no forms can be found.

II. CONCLUSIONS OF LAW

1. Beneficiary Designation Scheme

Nancy Vazquez contends that the Policy Amendment Rider of Arcangel's accidental death policy dictates that all of the proceeds from the policy should go to her. I disagree. The Policy Amendment Rider provides:

Indemnities payable for loss of life shall be payable to the beneficiary or beneficiaries designated in writing by the Insured Person and filed with the Policyholder for the purpose of this insurance. If no such designation has been made, such indemnities shall be payable to the beneficiar(ies) designated in writing by the Insured Person under the Policyholder's Group Life Insurance Policy, issued to the Policyholder. In the absence of either such designation as set forth above, such indemnity shall be payable in the order of successive preference as follows:

1. The Insured Person's widow or widower, if surviving Insured Person . . .

Exh. 1, Policy Amendment Rider at 6-7 (emphasis added). I earlier denied Nancy's motion for summary judgment on the ground that a genuine issue of fact remained whether the benefits of the policy had to be distributed in the manner designated by the rider. AIG, 2002 WL 31059296 at *3. No further evidence, however, has since been adduced that might shed light on whether the Policy Amendment Rider was meant to apply to the instant circumstance. Based on only the language cited above, Nancy renews her argument that this provision should apply where the beneficiary designation is unavailable because it was destroyed or lost. As suggested by the beginning of the first and second sentence in the Rider, however, the "absence" of a designation was meant to apply only when the insured failed to designate the beneficiary in writing. The Rider provides no provision in the event that the insured designated a beneficiary in writing and the designation becomes unavailable because it was either destroyed or lost. As I discuss below, I find that Arcangel designated both Nancy and Melissa Vazquez, and therefore, the terms of the Rider appear inapplicable to the situation here.

2. New York State Laws of Intestacy

In the alternative, Nancy Vazquez analogizes the unavailability of the beneficiary designation to the situation of a decedent who dies intestate. Under New York law, Nancy argues the death benefit should accrue to her. As part of her argument, Nancy seems to insinuate that even if Melissa were named as beneficiary, Melissa somehow lost her right to the proceeds. Nancy's arguments lack merit.

Assuming a preponderance of the evidence showed that Melissa was indeed a named beneficiary, she clearly did not predecease Arcangel, and therefore section 2096 of New York Jurisprudence on Insurance, entitled "Death of a Sole Beneficiary Before Insured," 71 N.Y. Jur.2d § 2096, is clearly inapplicable, contrary to Nancy Vazquez's suggestion. Furthermore, I find no ground to find that Melissa acted in a manner that forfeited her right to the proceeds of Arcangel' s death benefit if she was a named beneficiary. Cf Nancy Vazquez Post-trial Memo. at 15 (citing In re Loud's Estate, 70 Misc.2d 1026 (Surr. Kings 1972), in which the court held that the beneficiary was not entitled to the insurance proceeds because the beneficiary had murdered the insured).

Nancy Vazquez's argument that New York's Estate, Powers, and Trust Laws provides a proper basis for determining the disposition of Arcangel's employee accidental death insurance policy flies in the face of ERISA's preemption. See 29 U.S.C. § 1144(a). The insurance policy was provided by his employer, Fiduciary Trust Company International, see Exh. 1, and is therefore part of an "employee welfare benefit plan" within the meaning of ERISA. 29 U.S.C. § 1002(1). ERISA generally preempts state laws that "relate to" employee welfare benefit plans. 29 U.S.C. § 1144(a); see Metropolitan Life Insurance Co. v. Bigelow, 283 F.3d 436, 440 (2d Cir. 2002). It is well established in this circuit and others that ERISA preempts application of state law to determine the proper beneficiary under an ERISA plan. Krishna v. Colgate Palmolive Co., 7 F.3d 11, 16 (2d Cir. 1993); McArthur v. Carmichael, 1998 WL 146233, at *3 (S.D.N.Y. March 25, 1998) (reviewing case law from other circuits holding the same); see also MacLean v. Ford Motor Co., 831 F.2d 723, 728 (4th Cir. 1987) (holding that ERISA preempts state testamentary laws to determine the correct beneficiary under an ERISA plan). As the Second Circuit explained, "[t]here is a strong interest in uniform, uncomplicated administration of ERISA plans, many of which function in a number of states. . . It would be counterproductive to compel the Policy Administrator to look . . . . into varying state laws regarding wills, trusts and estates or domestic relations to determine the proper beneficiaries of Policy distributions." Krishna, 7 F.3d at 16; see also Phoenix Mutual Life Ins. Co. v. Adams, 30 F.3d 554, 563 (4th Cir. 1994) (acknowledging that Congress sought, through the preemption provision, "to ensure that plans and plan sponsors would be subject to a uniform body of benefit law; the goal was to minimize the administrative and financial burden of complying with conflicting directives among States and the Federal Government"). In addition, none of ERISA's exceptions to the preemption provision apply here. See 29 U.S.C. § 1144(b). Accordingly, it would be inappropriate here to rely on New York's Estate, Powers, and Trust Laws to determine the proper beneficiary. Krishna, 7 F.3d at 16 ("Considerations of public policy reinforce the precedents that would bar the use of New York law" to resolve who is the proper beneficiary of life insurance proceeds.).

3. Federal Common Law

If ERISA preempts state law and the ERISA plan is silent about the disputed issue, federal courts may fashion a federal common law standard. Conn. General Life Ins. Co. v. Mitchell, 1995 WL 469714, at *7 (S.D.N.Y. August 8, 1995). Keeping in mind that one of the primary purposes of ERISA is to promote the interests of employees and their beneficiaries, id, courts have customarily used evidence of the insured's intent to establish the proper beneficiary. See, e.g., Conn. General, 1995 WL 469714, at *7-8; Phoenix, 30 F.3d at 564. For instance, in circumstances where the insured wanted to change the named beneficiary but failed to strictly comply with the ERISA plan, courts have adopted from common law the doctrine of substantial compliance to give effect to the insured's intent. Id; see e.g., McCarthy v. Aetna Life Insurance Co., 92 N.Y.2d 436, 440 (1998) (acknowledging that the doctrine of substantial performance is followed by courts in Pennsylvania, Delaware, and New York). Under the doctrine, "an insured substantially complies with the change of beneficiary provisions when the insured: (1) evidences his or her intent to make the change and (2) attempts to effectuate the change by undertaking positive action which is for all practical purposes similar to the action required by the change of beneficiary provisions of the policy." Phoenix, 30 F.3d at 564.

When Arcangel began his new job in 1988, shortly after his marriage to Nancy, he presumably completed the beneficiary designation forms, as requested by the Human Resources Department. See Zoltowski TT at 294. Indeed, as evinced by Arcangel's inquiry with Zoltowski about what steps were needed to change beneficiaries in light of his estrangement from his wife, one can reasonably infer that he had in fact designated his newlywed wife in 1988 as a beneficiary. In view of the three year relationship he had developed with Miguel and his new wife at the time he commenced work with Fiduciary Trust, I find it more likely than not that he would have named his wife as a beneficiary on his insurance policy to care for his family should he die. Despite their physical separation, Arcangel maintained a deep interest in Miguel's well-being and had frequent interactions with his wife. Thus, contrary to William Vazquez's characterization, the evidence suggests there existed a positive familial relationship that lasted until the time of Arcangel' s death and, furthermore, that Arcangel maintained an interest in his family's well-being. According to William, Melissa was always named as a beneficiary in one or more of Arcangel's insurance policies. In light of Arcangel's financial support for his daughter throughout his life, I am persuaded that he would have included her as a beneficiary in his insurance policy to help take care of her. I have no doubt that Arcangel, despite his disapproval of some of his daughter's actions, loved his daughter, and I find it highly unlikely that he would have excluded her from the proceeds of his death benefit in the event he passed away. In summary, despite the strained relationships that he may have had with both his wife and his daughter, Arcangel, nonetheless, provided financial support to both when needed, and the preponderance of the evidence suggests that Arcangel made provisions to take care of both his wife and daughter if he passed away.

Testimony was adduced indicating that Arcangel had taken steps to change his designated beneficiary, possibly in connection with the insurance policy, and that there was a desire to include his mother on one or more of his insurance policies. No one, however, has offered any evidence or recollection that he affirmatively took steps beyond simply obtaining the change of beneficiary forms. Accordingly, I find no evidence to allow me to conclude that Arcangel substantially complied with the requirements to change the originally designated beneficiaries before his death, and I find his intended beneficiaries to be his wife, Nancy, and his daughter, Melissa. Cf Phoenix, 30 F.3d at 567-68; see also McCarthy v. Aetna Life Ins. Co., 92 N.Y.2d 436, 440 (1998) ("mere intent, however, on the part of the insured is not enough; there must be some affirmative act or acts on [the part of the insure] to accomplish the change" (quoting Cable v. Prudential Ins. Co., 453 N.Y.S.2d 86 (3d Dep't 1982)) (additions in original)).

III. CONCLUSION

For the foregoing reasons, I find that Nancy Vazquez and Melissa Vazquez were both named as beneficiaries on the death benefit insurance policy, and therefore each is entitled to an equal share of the proceeds of the policy. The clerk of the court is instructed to remove this case and any outstanding motions from my docket.

SO ORDERED