Community Property – No Spousal Waiver

Submitted by Jerry Matecun on Mon, 2018-01-01 20:39

Scenario 1
George and wife live in California (community property state). George decides to change the beneficiary without his wife signing a waiver. George adds his girlfriend as the primary beneficiary. George dies. Is the wife still entitled to the whole IRA? 50% of the IRA (her share of community property), 50% to the girlfriend? Or could it all go to the girlfriend?

Scenario 2
Totally different case if this is 401k – it would be waiver signed or else all goes to spouse, correct?

Thanks!



Submitted by Alan - IRA critic on Tue, 2018-01-02 00:01

  • Wife entitled to 50% of IRA in most cases, although an AZ court ruled that the 50% would be viewed collectively over all CP assets, not account by account. 
  • For 401k under ERISA instead of state rules (ERISA trumps state CP laws) account would go to wife. But if waiver not signed and plan accepted girl friend beneficiary, did George misrepresent his marital status? If so, there have been cases of the plan paying the named beneficiary, who then gets sued by the wife. All of this is a legal mine field.

Add new comment

Log in or register to post comments