Commonlaw Wife Rights To A 401k Of Deceased Commonlaw Husband

[Guest CONFUSED401K]

Help anyone- If a person dies and states his beneficiary on his 401k, does a common law spouse have any right to the account if the common law spouse is not the named beneficiary?

Please advise as soon as possible. Thank you!

[Mike Preston]

The determination as to whether an individual is the "spouse" is determined under State law, I think. Once the person is considered the "spouse" it doesn't matter whether the spouse is because of the common-law, or not.

You'd have to look into when the individual qualfied as the spouse and whether the plan has the one-year rule or not.

When all is said and done, though, if the person is the spouse the spouse enjoys the protection of ERISA insofar as beneficiary rights.

Now, I suppose somebody can claim that even if someone is a common-law spouse for State purposes, they still might not be a spouse for ERISA purposes. I'm not a lawyer so I can't say that line of reasoning is hooey. But it sure sounds like hooey.

[mbozek]

Ask The spouse what state the common law marriage existed (E.g. Texas) and see if the state recognizes cl marriage. Most states abolished common law marriage many years ago. In order to prove cl marriage the spouse will have to demonstrate by proof that the parties held themselves out to be h & W for for a period of time required by state law, e.g., 3 years, and kept a common home. By the way ask the spouse for joint tax returns filed with the employee and a copy of any probate decree or other ct determination that the parties were married at the time of th employee's death. Also the death certificate will indicate the marital status of a decedent on the date of death.