Probate, trust, guardianship and inheritance litigation
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Surviving Spouse Rights in Retirement Plans

By:  Jeffrey H. Skatoff, Esq.

Surviving spouse rights in retirement plans depend on whether the plan is a 401(k) or an IRA.  Retirement law is generally very favorable to surviving spouses, as laws favoring surviving spouses have been in effect for centuries.  Depending on the type of plan at issue, the rules will vary.

401(k) Plans – Presumed Beneficiary

For a 401(k) plan, the surviving spouse is the presumed beneficiary of the account at death, without regard to who is listed on the beneficiary form, unless the spouse waived such right in writing.

The surviving spouse’s rights in a 401(k) plan are guaranteed by Federal law, the Employee Retirement Income Security Act (ERISA). Under this law, plans must must provide that surviving spouses receive the entirety of the account balance.

In general, the 401(k) plan documents will provide for the method by which a spouse may waive rights to the 401(k) plan.  Typically, the spousal waiver form must be received by the plan sponsor (the employing company) prior to the death of the employee.  Not even a prenuptial agreement will typically be effective to waive the surviving spouses rights in this retirement plan.

Even if a spouse waives the right to receive the death benefit of a 401(k) plan, state law elective share rights could, in some circumstances, nevertheless provide the spouse with the economic value of the 401(k) plan, even if the 401(k) death benefit itself might be paid over to other family members.

IRA Accounts – More Flexibility

Account owners of IRA accounts have more flexibility regarding naming beneficiaries, and there is no Federal or State law requirement to name a spouse as the beneficiary of an IRA account.

State law will usually, however, give the surviving spouse the right to receive assets equal to the spouse’s elective share in all of the decedent’s assets.  The IRA account might be part of the assets to which the surviving spouse would be entitled.