Death benefit to new spouse

This involves a fairly standard smaller 401(k) Plan that started in 2016.  At that time, all participants completed a beneficiary form.  The one participant completed his, naming his spouse as primary beneficiary and his son as contingent beneficiary.

2018 the participant divorces and then marries spouse #2.  But never changes the beneficiary form.

2020, the participant passes away.  

Even though a new beneficiary form was not completed, the new spouse would be the beneficiary, is that correct?  Is that automatic?

Thanks

Yes, by law, the spouse at the time of death must be sole primary beneficiary. Plan can require that they be married for a year before that kicks in, so check the document language, although you look to be past that regardless. This is, of course, subject to any QDRO wife #1 may file.

I don't think there is a box which he would Check (my spouse). He would have had to put in her Name, Date of Birth and possibly all or last four of HER ssn...this is one of those things that I would hope they could be adults about and not end up in years of litigation....Obviously depending on their divorce arrangement the ex spouse could be entitled what was earned in the account prior to wife #2...

hey CuseFan- can you provide the citation for the law you're referring ro. I thought the plan doc or custodial agreement would speak to that? Our has a specific language stating that if a spouse is a beneficiary and is divorced at the time of the participant's passing that they would be treated as having pre-deceased the owner and the contingent bene would come into play and the new spouse would only be eligible for the portion under community property. I may need to relook at this if this is the law. Thanks

IRC 401(a)(11). In order for a 401(k) plan to be exempt from the qualified joint & survivor annuity rules, the participant's spouse must be their 100% beneficiary, unless waived.

Thank you for your replies