A concerned relative contacted me. Her cousin had been married for eight years before her recent death. Her deceased cousin had a son from a prior marriage.
Her cousin started a 401(k) plan three decades before her marriage and she wondered whether her cousin’s son would be entitled to any portion of the 401(k).
A 401(k) plan is a “qualified” retirement plan created for employees that must meet specific IRS rules in order to qualify for federal tax benefits.
Qualified retirement plans are governed by federal law which requires that a surviving spouse inherit all the money in the account unless the spouse has signed a waiver during the marriage authorizing that a different beneficiary be named.
This is the case even if a prenuptial agreement has been signed. Additionally, just because a spouse signs a waiver at some point in the marriage doesn’t prevent the spouse from withdrawing consent at a later point in time.