401(k)/remarriage after employment
Hi,
62 year old passed away with 401(k) at Fidelity. While employed, decedent named his 4 children, equally, as the primary beneficiaries. After retirement, decedent married and did not change beneficiary of 401(k) because he wanted his 4 children from prior marriage to remain as the primary beneficiaries.
I realize that the general rule for 401(k)’s is that when the participant does not name his or her spouse as the primary beneficiary, then the consent to waive the benefits must be obtained by the spouse.
However, in decedent’s case, he was unmarried when he named children as the primary beneficiaries and therefore no spousal waiver consent was required.
Stepmother of children is now trying to make argument that the 401(k) is hers – can she do so? It was a 4 year marriage after employment. Is spousal consent to waive required here?
Any help is appreciated. The children are quite upset and were told by their father (the decedent) that he wanted them to be beneficiaries. Thank you.
Permalink Submitted by Alan Spross on Tue, 2009-04-07 23:34
Under federal law, the spouse becomes the automatic primary beneficiary on any ERISA plan after a very short waiting period. About the only option the children have here is to prove the marriage invalid. This situation is often cited as another reason to roll over these plans to an IRA after retirement, where an automatic spousal interest does not apply except in community property states.