Is a husband required to make a new 2nd wife his profit sharing beneficiary?

[RayJJohnsonJr]

Is a husband required to make a new 2nd wife his profit sharing beneficiary?

I have been researching this all over, including BenefitsLink, and cannot find a definitive answer.  I'm finding dramatically different answers.  I'm working with the client's attorney who is doing the client's estate planning before the marriage takes place, and this the one loose end we cannot conclude.  Does anyone know and can point to the authority (ERISA, DOL, etc.) with which we can confirm the requirement and the client can not worry?  He want's to leave his PS account to his kids, who he named as PS Plan beneficiary after his divorce. Or, he's willing to give his new wife 1/4th.  He's opposed to asking her for a release since she blew up when he asked for a pre-nup.

Also, as I understand it, IRA's are not required to make spouses beneficiaries.  This gentleman is retired and would have no problem transferring all his PS Plan assets to an IRA, if it would work. 

[MoJo]

The answer to your question is yes, the spouse *is* the beneficiary with a few exception (does the first wife have a QDRO giving her an interest in the plan balance?).  Naming one other than the wife as beneficiary is going to require that she waive her rights to the plan.

Authority can be had, but your best bet is to go to the plan administrator and ask for a beneficiary designation form and instructions - that will tell you what is required for the guy to name his kids.....

[My 2 cents]

Technically, the answer to "Is a husband required to make a new second wife [is there an old second wife?] his profit sharing beneficiary?" is no.  In the absence of a QDRO preserving the first wife's status as spouse, any prior beneficiary designations immediately become void upon the participant's remarriage, and the default beneficiary, when there is a spouse, will automatically be the spouse.  No action on the part of the participant is required.

If there is any desire to make someone else the beneficiary, it would be necessary for the participant to formally designate that person as the beneficiary, and (irrespective of any prenuptial agreements, which cannot, by themselves, alter the spouse's right to be the beneficiary) for the new spouse to waive her rights under the plan (after the marriage - cannot be done before).  If the new spouse is unwilling to do that, you got a problem.  If she is going to blow up if asked to waive her rights under the 401(k), then either she will be the beneficiary or she will blow up. 

I don't usually work with 401(k) plans.  Would the participant be able to pull the assets out of the 401(k) plan (to put them into an IRA, assuming that he can successfully cut her out if it is moved to an IRA) without spousal consent once the marriage takes place?  Can't imagine that if there is a successful strategy for doing what the participant wants to do, that it won't involve his new spouse blowing up. 

[david rigby]

Different, but related topic: get some pre-marriage counseling!

[My 2 cents]

10 hours ago, david rigby said:

Different, but related topic: get some pre-marriage counseling!

Absent a pre-nup to the contrary, isn't the overriding presumption that the participant and the new spouse are committed to taking care of each other?  If there is no wish to make sure that the second wife is properly provided for, why are they marrying?  If the second wife is not in agreement with respect to making sure that the child(ren) from the first marriage are properly provided for (if the participant is so committed), how can the marriage be expected to work?

[NJ Mike]

Sounds like a merger more than a marriage!

Mike

[My 2 cents]

1 minute ago, NJ Mike said:

Sounds like a merger more than a marriage!

Mike

Unfortunately, with characteristics of a hostile takeover!

[RayJJohnsonJr]

I do very much appreciate all of y'alls thoughtful replies.  It seems clear the soon to be new wife automatically is the beneficiary by rule of law.  No way out of that.  The only remaining question is: If the participant, currently single, and retired and is beyond normal retirement age, and anticipating a wedding date about 6 months away, is there any reason he could not transfer his PS Account to an IRA, and name any beneficiary he chooses?

Regarding moral judgements, you would have to know all the peripheral circumstances to judge the man's motivation.  I did not think this to be a forum for that.  Keep in mind, every other asset they bring into the marriage is separate property, not subject to division in a divorce.  The fact this is a PS Account invalidates the doctrine of separate property.  I agree with the protection Ronald Reagan implemented for spouses protection.  If a couple are married for a long time, and one or both build a significant Qual Plan account, fine, they did that together.  They each deserve to share.  But this case amounts to a big gift that the new spouse who had no involvement or sacrifice in it's accumulation.  She has no need for it, she is significantly financially independent.

To those who read the second paragraph and realized it has nothing to do with the search for the what the rules are, I apologize if I wasted your time.  For some unnecessary reason I found myself defending my client's honor.

Thanks everyone,

Ray

 

[My 2 cents]

4 minutes ago, RayJJohnsonJr said:

I do very much appreciate all of y'alls thoughtful replies.  It seems clear the soon to be new wife automatically is the beneficiary by rule of law.  No way out of that.  The only remaining question is: If the participant, currently single, and retired and is beyond normal retirement age, and anticipating a wedding date about 6 months away, is there any reason he could not transfer his PS Account to an IRA, and name any beneficiary he chooses?

Regarding moral judgements, you would have to know all the peripheral circumstances to judge the man's motivation.  I did not think this to be a forum for that.  Keep in mind, every other asset they bring into the marriage is separate property, not subject to division in a divorce.  The fact this is a PS Account invalidates the doctrine of separate property.  I agree with the protection Ronald Reagan implemented for spouses protection.  If a couple are married for a long time, and one or both build a significant Qual Plan account, fine, they did that together.  They each deserve to share.  But this case amounts to a big gift that the new spouse who had no involvement or sacrifice in it's accumulation.  She has no need for it, she is significantly financially independent.

To those who read the second paragraph and realized it has nothing to do with the search for the what the rules are, I apologize if I wasted your time.  For some unnecessary reason I found myself defending my client's honor.

Thanks everyone,

Ray

 

Concerning the first paragraph - what happens (either before or after marriage) when wife #2 finds out what he did if he does, without consent, withdraw the funds and roll them into an IRA (as is presumably his right, if eligible to take the money out)?  Would it be an in-service distribution, and if so, would he be eligible to take the money out?  Without knowing any of the individuals involved, I can't imagine that wife #2 would graciously accept his having moved the money out of her reach, given her reaction to his bringing up the subject of pre-nups.

[RayJJohnsonJr]

Well, regarding the eligibility, he's 73, been retired for about 2 years, and certainly eligible to rollover to an IRA.  

As to the issues with the new spouse, I think I'll leave that to him, and whatever input his attorney has to add.  Bottom Line: if he doesn't want her to be 100% beneficiary, he can ask her to sign a release, or roll to IRA now, or roll some to IRA and she gets what stays in the Plan.  

 

Thanks everybody, I think I have my answer.

[david rigby]

21 minutes ago, RayJJohnsonJr said:

... if he doesn't want her to be 100% beneficiary, he can ask her to sign a release...

Just in case it has not been clear from earlier comments, a pre-nup is not a valid "release" for a beneficiary designation under any qualified plan.

 

[RayJJohnsonJr]

Thanks David.  I had read that about the pre-nup.  I have told the attorney the only 2 ways to avoid his new wife being the beneficiary is to either have her sign a release or rollover the PS assets to an IRA.  two interesting twists are 1) the PS Plan holds a joint life policy on the participant and his 1st wife.  In their divorce decree, the ex-spouse is to recieve the policy should the participant die 1st, which is almost certain, since he is 15 years older and in very poor health.  My guess is that that would be voided by the second marriage.  and 2) the PS Plan holds some raw land.  To roll that to an IRA we'll need one of those self-directed IRA Custodians that administer IRA's that can hold just about anything that an IRA can legally hold.

[Bird]

Quote

the PS Plan holds a joint life policy on the participant and his 1st wife.  In their divorce decree, the ex-spouse is to recieve the policy should the participant die 1st, which is almost certain, since he is 15 years older and in very poor health.

I think you're right, his (new) wife would have to be the beneficiary of all plan benefits.  But that doesn't mean the language in the divorce decree can be completely ignored as an "oops, never mind."  It may not be enforceable but I'd assume there is some breach of contract violation if he does anything that invalidates that clause; I'm not a lawyer and I don't know for sure.  But you and he had better make sure his attorney understands these interactions 100% or gets someone who does know.  I see nothing but red flags waving - second to die insurance with some wifty provision that the first spouse gets the policy at his death, raw land in the plan.  Oy.

[david rigby]

16 hours ago, RayJJohnsonJr said:

... the PS Plan holds a joint life policy on the participant and his 1st wife.  In their divorce decree, the ex-spouse is to receive the policy should the participant die 1st, which is almost certain, since he is 15 years older and in very poor health.  My guess is that that would be voided by the second marriage.  and 2) the PS Plan holds some raw land. 

Note that the divorce decree has no authority to require that the plan retain (or dispose of) any particular investment.

[K2retire]

17 hours ago, RayJJohnsonJr said:

two interesting twists are 1) the PS Plan holds a joint life policy on the participant and his 1st wife.  In their divorce decree, the ex-spouse is to recieve the policy should the participant die 1st, which is almost certain, since he is 15 years older and in very poor health.  My guess is that that would be voided by the second marriage.  

If there is a valid Qualified Domestic Relations Order (which is not the same thing as a divorce decree) the second marriage would not void that provision.

[TPAJake]

A 73 year old in poor health is planning a wedding?  There's all the red flags you need right there

[RayJJohnsonJr]

Thanks all, I'm advising the client to ask his wife-to-be to waive her right to the Life Policy in a spousal consent.  She'll probably accept that.  So the divorce decree can remain intact, even though there is no QDRO for the ex to get the policy..

 

Thanks again all!

[My 2 cents]

Reminder - any spousal consents needed cannot be effectively given until after the marriage.