The Comprehensive Guide to Probate, Trusts, Estate Planning, and Inheritance Litigation

Surviving Spouse Rights in Retirement Plans

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.

Find Your Florida Probate Star

Orange County (Orlando)

Philip W. Gunthert

Broward County (Ft. Lauderdale)

Natasha M. Dalton

Pinellas County (Clearwater)

Matthew Weidner

Sarasota County

Dawn Bates-Buchanan

Hillsborough County (Tampa)

R. Todd Burbine

Palm Beach County

Nicole Quattrocchi

Lee County (Ft. Myers)

Scott Kuhn

Marion County (Ocala)

Katina Pantazis

Pasco County (Port Richey)

Matthew Weidner

Collier County (Naples)

Gregory J. Nussbickel

St. Lucie County

Romaine Brown


Niuris Bezanilla

Volusia County (Daytona)

Heather Caeners

Martin County (Stuart)

Jon L. Martin

Duval County (Jacksonville)

Long H. Duong

Sumter County (The Villages)

Matthew Weidner

Polk County (Lakeland)

Lesly Vaillancourt

Manatee County

Brice Zoecklein

Seminole County (Sanford)

Matthew Weidner

Monroe County (Key West)

Matthew Weidner

Osceola County (South Orlando)

Matthew Weidner

Lake County (West Orlando)

Matthew Weidner

Charlotte County

Matthew Weidner

Find Your California Probate Star

Los Angeles County

Stewart J. Levin

San Diego

Merwyn J. Miller

San Bernardino County

Fred W. Edwards

Ventura County

Naomi Stal

San Mateo County

Sally Bergman

Stanislaus County (Modesto)

Thomas Bonte

Orange County

Priscilla Madrid

Santa Clara County

Nicholas P. Jellins

Find Your Texas Probate Star

San Antonio

Gilbert Vara, Jr.


Grace P. Shoemakers


Kyle Robbins


Steven S. Boss

Grayson County

Jacob Pelley

Williamson County

Lorenza Cigarroa

Find Your New York Probate Star

Nassau County

Cyrus Shaw

Westchester County

Anthony Nigro


Inna Fershteyn

Erie County

Ruth P. George


Rudolf Karvay

Suffolk County

Marc Weissman

Rockland County

Ari J. Zaltz

Find Your Ohio Probate Star

Hamilton County (Cincinnati)

Jennifer R. Harlow

Franklin County (Columbus)

Eric McLoughlin

Find Your Maryland Probate Star

Prince George's County

Ralph W. Powers, Jr.

Calvert County

Zach W. Worshtil