403(b) Plans

[Nassau]

I have termination / rollover to a Company (like Fidelity) IRA paperwork from a participant who is in both the ( Non-Erisa) and (Erisa) plans. The participant has recently re-married and has a pre-nuptial agreement stating that all retirement accounts are to be kept separately from the spouse. Therefore, the participant did not have the spousal consent section of the termination form completed but had forwarded a copy of her prenuptial agreement. Would a prenuptial agreement override the spousal consent for a distribution?

[Guest LVanSteeter]

Probably not in Fidelity's view.

Try calling the custodian and asking what they would require in this situation.

[Beemer]

Only a spouse can give spousal consent, and a pre-nup is signed by someone who is not a spouse. Therefore, I don't think the pre-nup agreement would be considered at all with regard to the plan.

[Guest mjb]

Pre nups are valid only for non erisa plans, eg. IRAs, 403b plans exempted from erisa.

[Guest JRawls]

A Pre-Nuptial agreement is like any other agreement a contract. Therefore, state rules on Contract laws may work to invalidate them if the state does not recognize contracts that eliminate a sposue's federal statutory right if the federal statute pre-empts the topic. It looks like the feds want to pre-empt pensions. This is a reasonable guess because the ERISA statue provides for a method to have the spouse waive the pension. The pre-nupt could have been written to exchange her federal right in exchange for some other valauble property so that the judge would not be inclined to void the pre-nupt .

[A Shot in the Dark]

I totaly agree with JLK. The best bet for the participant would be a completed spousal waiver by the spouse.

[Guest Pensions in Paradise]

Prenup isn't valid. Treas. Reg. 1.401(a)-20, Q&A 28

[Guest mjb]

Pre nups are enforceable contracts under laws of most states (NY) including waiver of rights to non ERISA plan benefits. Pre nups are not valid for waviers of rights under an ERISA plan.