401(k)s, Spousal Waiver and Beneficiary Forms

I don’t have much to add to this Wall Street Journal story on the interplay of spousal consent rules, ERISA and beneficiary forms in 401(k) plans, but I did want to pass it along. There may be no more common fact pattern in either my years of practice or in the case law than that of the deceased employee who meant to leave the assets of his 401(k) plan to his children from an earlier marriage – and filled out a beneficiary form so saying – but whose assets instead ended up paid out by the plan to the employee’s second wife, who was not named a beneficiary but, at the same time, never waived her right to the 401(k) assets. In most of these instances, the employee never knew that spousal consent/waiver rules would result in the widow receiving the benefits, no matter what the employee intended while alive or what he wrote in the beneficiary form.

For many people, the terms of their plans are a riddle wrapped up in an enigma, and without outside guidance, they are unlikely to get it right if they try to leave the assets in their 401(k) plans to anyone other than their current spouse.