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Pre-Nups and ERISA
Take a second look at your prenuptial agreements. Do they adequately
protect retirement accounts from the reaches of ERISA? Chances are they do not. ERISA has specific requirements to effectuate a spousal waiver of rights to a participant's retirement benefits. The 4th U.S. Circuit Court of Appeals for the Eastern District of North Caroline held over a year ago that if these requirements are not met, a waiver of these benefits in a prenuptial agreement will not be enforceable.
In that particular case, the court found that the waiver requirements of ERISA must be strictly enforced, as they were enacted to protect against a spouse's unwitting waiver of those rights. Other federal courts have similarly held that prenuptial agreements cannot satisfy the ERISA requirements on waiver.
To protect against this problem, when drafting prenuptial agreements, attach the necessary ERISA waiver forms to the agreement, and advise the parties that these forms must be executed after the marriage has occurred. Be advised, however, that a problem arises if neither party has any ERISA retirement at the time of the marriage. After the parties have been married for a few years, and one or both spouses acquires an ERISA retirement plan, how realistic is it to expect one spouse to compel the other to execute the necessary waivers, especially in an intact marriage?
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