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:
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)
Contact QDROCounsel for a referral to an ERISA attorney
Mon-Fri: 9am - 5pm PST
Disclaimer: Communications between you and QDROCounsel are protected by our Privacy Policy but not by the attorney-client privilege or as work product. We are a legal services support company and legal document drafting platform and not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies specific to your case. Communication of information by, in, to or through this Website and your receipt or use of it (1) is not intended to convey or constitute legal advice, and (2) is not a substitute for obtaining legal advice from a qualified attorney. We provide information of a general nature to assist you with our services. QDROCounsel provides access to a referral network of independent attorneys, valuation experts, non-profits, and self-help services who assist with pension division. You must enter into a separate agreement with them for services. Your access to our Website and Applications is subject to our Terms of Use.
Copyright © 2023 QDROCounsel.com All rights reserved.