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Non-employee Spouse Waivers of ERISA Plan Benefits Not Reliable
In an aging population, accumulations in employee retirement plans assume greater and greater importance. Nowhere is this more true than in divorce, when, for many couples, retirement savings represent the most significant part of their savings. This fact is reflected in divorce practice by the number of firms that specialize in valuing accounts in employee benefit plans subject to the Employee Retirement Income Security Act (ERISA) and in drafting domestic relations orders for recognition as “qualified domestic relations orders” (QDROs). For divorcing couples who receive professional advice on this question, the division of retirement savings may seem straight forward, but for some who may not have the benefit of such advice, this can prove to be difficult, even when the parties have reached agreement on how the funds should be divided.
Pension Funds
A pension fund, such as, for example, a 401(k) plan, must include an anti-assignment clause, preventing the transfer or assignment of the participant's interest in the plan. I.R.C. ' 401(a)(13); ERISA ' 206(d)(1), 29 U.S.C. ' 1056(d)(1). Moreover, under the Retirement Equity Act amendments to ERISA, the participant's spouse may also have rights as a beneficiary in the participant's interest in the plan, and his or her consent may be required to make or change beneficiary designations. See IRC ' 401(a)(11); ERISA ' 205, 29 U.S.C. ' 1055. The one exception to the anti-assignment rule is the QDRO, which can be used to assign an interest in a retirement fund to the spouse who is not the employee and, therefore, not the participant in the plan. But what about the interest retained by the employee? This problem often appears when the employee spouse dies, sometimes long after the divorce, and his or her ex-spouse then claims the death benefit, contrary to the marital agreement the parties had at the time of divorce.
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