Can you get a prenup with an ERISA Plan?

The short answer is NO! Federal law does not allow a prenuptial agreement to waive survivor benefits with ERISA plans. Federal Regulations [CFR Regulation 1.401(a)-20 Q&A 28] state as follows:

  • Q-28: Does consent contained in an antenuptial agreement or similar contract entered into prior to marriage satisfy the consent requirements of sections 401(a)(11) and 417?

  • A-28. No. An agreement entered into prior to marriage does not satisfy the applicable consent requirements, even if the agreement is executed within the applicable election period.

Because of the structure of ERISA, which speaks of what “spouses” might do, a spousal waiver of ERISA-governed retirement and survivorship benefits cannot be accomplished by way of a premarital agreement, since definitionally the parties to such an agreement are not married. Nat’l Automobile Dealers and Assocs. Retirement Trust v. Arbeitman, 89 F.3d 496 (8th Cir. 1996). For qualified & ERISA plans post marriage, waiver of benefits can only be done pursuant to the Plan procedures regarding waiving spousal benefits. Kennedy v. Plan Adm'r for DuPont Sav. & Inv. Plan, 129 S. Ct. 865, 172 L. Ed. 2d 662 (U.S. 2009)

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