“A participant has remarried after his first wife died. He and the current wife signed a prenuptial agreement that said the balance of his 403(b) plan at the time of the marriage would go to his children from his first marriage in the event of his death; any accumulation afterward would belong to her. The plan provisions state that the spouse is the primary beneficiary unless he/she waives that right in writing. Is this agreement sufficient for the new wife to waive her rights to the 403(b) plan?”
Michael A. Webb, vice president, Cammack Retirement Group, answers:
This is an excellent and complex question, primarily due to the fact that your plan is not subject to ERISA. Because your plan is not subject to ERISA, it is subject to relevant state law, the provisions of which vary from state to state. In addition, should the issue ever be in dispute (and, unfortunately, beneficiary litigation is EXTREMELY commonplace) the issue of whether a prenup would constitute a waiver that is “in writing” for retirement plan purposes, and even the interpretation of what your plan requires, may be a matter for a local court to decide. Thus, you should contact outside counsel with specific expertise in such matter to determine whether the prenup is sufficient as a valid beneficiary designation, or if further documentation such as a new waiver would be required.
Should an actual dispute arise between the parties as to who is entitled to the benefit, you should also look to the claims procedures in the plan. Non-ERISA plans are not required to have claims procedures, but they often do, and can be protective of the plan administrator by providing clear rules for any disputes.
If your church plan had elected to be covered under ERISA, the answer would have been much simpler. ERISA plans provide certain rights to a participant’s spouse in the event of the participant’s death that CANNOT be waived by a prenuptial agreement. The participant must provide specific written consent to waive these spousal rights in the manner proscribed by the plan document.
It should be noted that what we have discussed thus far applies only in the event of a participant’s death, as opposed to the dissolution of a marriage. ERISA plans are subject to what are called qualified domestic relation orders (QDROs) which often stipulate the division of retirement plan assets in the event of divorce, as well as any other marital property, child support or alimony disputes. Church plans are not subject to all of the rules regarding QDROs, but can also divide retirement plan assets under a domestic relations order if one is provided to the plan.
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