                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 11-3578
                        ___________________________

  A.J., a minor by and through her next friend Lori Dixon; D.M., minor, by and
 through their next friend Shannon Mers; B.M., minor, by and through their next
                              friend Shannon Mers

                      lllllllllllllllllllll Plaintiffs - Appellants

                                           v.

 UNUM; A&A Contracting Group Life Insurance Plan; A&A Contracting, Inc.,
                         Plan Administrator

                     lllllllllllllllllllll Defendants - Appellees
                                      ____________

                     Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                         Submitted: September 17, 2012
                            Filed: October 19, 2012
                                  [Published]
                                ____________

Before MELLOY, BEAM, and BENTON, Circuit Judges.
                          ____________

PER CURIAM.

      Robert J. Johnson, the father of A.J., D.M., and B.M., died without naming a
beneficiary of his Unum life insurance. His estate filed a basic-life claim (which
Unum granted) and an accidental-death claim (which was denied). Unum claimed
that Johnson committed a (uncharged) crime contributing to his death by carelessly
and imprudently driving his motorcycle, in violation of Section 304.012, RSMo 2000.
The administrator of the estate did not appeal the denial. The estate’s sole
beneficiaries are A.J., D.M., and B.M. Their attorney says he did not receive notice
of the denial in time to appeal administratively. The children filed a second
accidental-death claim, alternatively requesting to appeal the denial of the estate’s
claim. Unum denied that the children were beneficiaries and said the claim was
closed. They sued Unum, asserting a breach of the policy and an ERISA violation.
The district court1 concluded they lacked standing, dismissing the suit. The children
appeal, arguing that, under ERISA, they are beneficiaries of the plan and have
standing.

       Standing to sue under ERISA is a jurisdictional issue. Wilson v. Sw. Bell Tel.
Co., 55 F.3d 399, 403 n.3 (8th Cir. 1995). “We review de novo the grant of a motion
to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1).” Great Rivers
Habitat Alliance v. Fed. Emergency Mgmt. Agency, 615 F.3d 985, 988 (8th Cir.
2010). “We must accept all factual allegations in the pleadings as true and view them
in the light most favorable to the nonmoving party.” Id. “Because standing is
determined as of the lawsuit’s commencement, we consider the facts as they existed
at that time.” Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000).

     ERISA empowers a beneficiary to sue to recover benefits. 29 U.S.C. §
1132(a). A “beneficiary” is “a person designated by a participant, or by the terms of
an employee benefit plan, who is or may become entitled to a benefit thereunder.”


      1
       The Honorable Thomas C. Mummert, III, United States Magistrate Judge for
Eastern District of Missouri, to whom the case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. § 636 (c).



                                         -2-
29 U.S.C. § 1002(8). The children realize that they were not designated as
beneficiaries. They claim they “may become entitled” to benefits based on the
policy’s facility-of-payment clause:

      If you do not name a beneficiary, or if all named beneficiaries do not
      survive you, or if your named beneficiary is disqualified, your death
      benefit will be paid to your estate.

      Instead of making a death payment to your estate, Unum has the right to
      make payment to the first surviving family members of the family
      members in the order listed below:

      - spouse;
      - child or children;
      - mother or father; or
      - sisters or brothers.

       The children argue that Unum’s right to pay them rather than the estate makes
them “beneficiaries” under ERISA’s “may become entitled” definition. Unum denied
the estate’s claim. It was the only claim filed within the express time under the terms
of the policy. Once denied, it was not appealed within the express time under the
terms of the policy. The administrator of the estate chose not to appeal so as to “not
put estate assets at risk in the pursuit of the litigation.”

       In order to be a “beneficiary” with ERISA standing, a claimant must have a
reasonable or colorable claim to benefits under an ERISA plan. Crawford v. Roane,
53 F.3d 750, 754-55 (6th Cir. 1995) (relying on the Supreme Court’s analogous
definition of “participant” in Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101,
117-18 (1989)). The estate’s decision not to appeal precludes the children from
having a reasonable or colorable claim to benefits. See Chicago, Rock Island & Pac.
Ry. Co. v. Schendel, 270 U.S. 611 (1926) (finding an action brought by the
administrator of an estate bound by a judgment against the sole beneficiary of the
estate); Milton H. Greene Archives, Inc. v. CMG Worldwide, Inc., 568 F. Supp. 2d

                                         -3-
1152, 1172-73 (C.D. Cal. 2008) (collecting cases concluding that a beneficiary is
bound by a judgment for or against an executor, administrator, or trustee), aff’d sub
nom. Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, ___ F.3d ___, 2012
WL 3743100 (9th Cir. Aug. 30, 2012). Because the children may not become entitled
to benefits, the district court properly dismissed this case.


      The judgment of the district court is affirmed.
                       ______________________________




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