In a defined contribution plan, let's say a participant has accumulated $1,000,000 in retirement plan assets. He was divorced several years ago, and there was no QDRO. The former spouse agreed to waive her rights to the pension in lieu of other assets.

The participant is about to re-marry. Is the new spouse entitled to the entire plan assets of the participant in the event of his death ($1,000,000) in the event she does not sign a spousal waiver (assuming they have been married for one year at the time of the participant's death or retirement)?

I read where the language of a pre-nuptial agreement does not supercede the QPJSA, so it would seem to me that they are entitled to the whole thing without a signed waiver.

I would appreciate any comments.

Thanks.
Michael

See IRS Reg. 1.401(a)-20. http://www.access.gpo.gov/nara/cfr/cfrhtml...26cfrv5_00.html

Usually, a plan will include a pretty specific definition of "beneficiary" and what death benefit is payable. If there is no prior QDRO, then a prior spouse will not impact what death benefit might be payable to the current spouse. See especially Q&A-20 for comments on QPSA in a DC plan.

A pre-nuptial agreement cannot be enforced to satisfy spousal consent requirement. See Q&A-28.

IF the participant does not want the new spouse to get it all, and the new spouse will not sign a waiver after marriage - is this your question?

This is the only situation where I would advise putting a Joint and Survivor rule in the plan. Then 50% of the benefit belongs to the new spouse, the other 50% can have whatever beneficiaries the participant wants without spousal consent.

Thanks for the replies.

Yes, I was wondering whether the new spouse would be entitled to the participants plan assets that were accumulated prior to the marriage, even with a J&S benefit.
Assuming that the participant had been accumulating retirement assets for 20 years, could those prior assets be protected from the new spouse, with the only entitlement being new assets and their net gain/loss thereon.

Absolutely no protection as long as she is spouse! Unless she waives after marriage.

If the participant is entitled to take a distribution, would rolling it to an IRA help? May be subject to a host of other considerations but at least it would out from under the qualified plan rules.

Participant names his daughter as beneficiary of his money purchase pension plan at a time when he is unmarried. He subsequently marries and dies several years later. Does the spouse have any rights? Does the subsequent marriage invalidate the beneficiary designation.

Under ERISA spouse is beneficiary of at least 50% of account balance payable as an annuity. Need to review plan to see of spouse is designated beneficiary of 100% of account balance. Non ERISA plan is subject contractual provisions of the plan.