Non-ERISA plan – Does that change this rule?

Submitted by Ron Donato on Wed, 2015-12-30 19:41

Situation is this: Woman1 was married (NJ resident) and after many years, divorced. Had children from 1st marriage. Got married in NJ to woman2 some years later, and did not change the beneficiaries (children) on her various retirement accounts, which included 401k, 403B, etc, one of which we are told was a Non-ERISA plan. Woman1 then died without changing beneficiaries due to an oversight. In an earlier post you had written that state, not federal, law generally controlled this issue. So, does the Woman2 have a claim on the plan(s), including the Non-ERISA plan or not? Thanks.



Submitted by Alan - IRA critic on Wed, 2015-12-30 22:14

This link describes the general rule:   http://benefitslink.com/links/20130916-108079.html. It does not appear that non ERISA plans are treated any differently than qualified plans. The link applies to DC plans, and both of the plans you posted are DC plans, so Woman 2 may well have a course of action. That said, the date of death is key and there could be other extenuating circumstances that apply in this case, so a NJ employee benefits attorney is best suited to sift through all the details.

Submitted by Bruce Steiner on Wed, 2015-12-30 23:19

  • Surviving spouses may have rights to qualified plan benefits under Federal law.

 

  • In New Jersey, as in most states, a surviving spouse is entitled to an elective share if that’s more than what he/she would otherwise receive.  In New Jersey, it’s generally one-third, with certain adjustments.  See N.J.S.A. § 3B:8-1 et seq.:  http://law.justia.com/codes/new-jersey/2013/title-3b.  The statute sets forth the procedures for claiming the elective share, and contains provisions regarding who has to contribute to it.

 

  • Bruce Steiner, admitted in NY, NJ and FL

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