Spouse is Non-US citizen

[Santo Gold]

Any thoughts are appreciated:

A participant in a 401k is a US citizen.  Her spouse is not a US citizen and does not live in the US.  She wants to name her 2 children as beneficiaries for her 401k account.  Would spousal consent be required to do so in this case?

Thank you

[Riley Britton]

Yes, spousal consent would be needed.  You can name a non-citizen as a beneficiary. 

[Peter Gulia]

A person may get a notarial act (such as a notary’s certificate of having taken an acknowledgment of, or having witnessed, a spouse’s consent to support a participant’s qualified election) at the US consulate.

And if there is no consular official, the Secretary of State may authorize others to do notarial acts.

Such an act done by a consular official or other US-authorized person has the same effect as a notarial act done by a US State’s notary.

22 U.S.C. § 4215 http://uscode.house.gov/view.xhtml?req=(title:22%20section:4215%20edition:prelim)%20OR%20(granuleid:USC-prelim-title22-section4215)&f=treesort&edition=prelim&num=0&jumpTo=true

22 U.S.C. § 4221 http://uscode.house.gov/view.xhtml?req=(title:22%20section:4221%20edition:prelim)%20OR%20(granuleid:USC-prelim-title22-section4221)&f=treesort&edition=prelim&num=0&jumpTo=true

[fmsinc]

It is true that you need your spouse's consent to name anyone other than that spouse as the beneficiary of your 401(k).  But is it a consent or a waiver.  See the attached Fidelity generic form. the language sounds more like a conditional consent. 

Let's assume you get that consent and you name your children as beneficiaries.  

Let's assume further that you remarry and now want to name your new spouse as the beneficiary.  

How does that work? 

Can you delete the children without their consent?  Or do you need to ask the court to appoint a guardian of the property of the children and have the guardian consent to the change?  

On the date of your remarriage, will your new wife instantly vest as the beneficiary, automatically superseding the children as the sole beneficiary?  Or not.

N.B. Even though your current wife has consented to naming the children as the beneficiaries, the vested balance in the 401(k) plan account is still "marital property" or "community property" depending on what state where you live, and it is still divisible by the court in divorce with the use of a QDRO.  

N.B.  None of the above applies if you are really dealing with a Federal Thrift Saving Plan account and have assumed incorrectly that the 401(k) rules applies. 

David    

Generic_Beneficiary_Form_Spousal.pdf