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What happens to 401(k), savings account after divorce?


Q. Right before my son got married two years ago, he placed my name on his 401(k) and savings account to protect himself. What happens if something happens to him? Will his wife have any rights to his 401(k) or other accounts?
— Parent

A. The answer isn’t a simple yes or no here.

First, once your son got married, in the event of his untimely demise his wife would have claims to certain assets no matter what actions he took before the marriage, said Kenneth White, a certified matrimonial attorney with Shane and White in Edison.

Unless, of course, the couple had a prenuptial agreement.

“Specifically, if your son were to pass away his wife would be entitled to a portion of his assets, referred to as an `elective share’ which would be equal to at least one-third of the assets that would otherwise pass through probate,” White said. “The only way to avoid an `elective share’ is to have a prenuptial agreement within which the right to take an `elective share’ is waived.”

His 401(k) and savings account would be treated differently, White said.

You said your son put your name on his 401(k).

It’s unlikely that your son could put your name on his 401(k) because that’s an asset that belongs to an employee as an individual and cannot be jointly titled, White said. So perhaps your son named you as the beneficiary of his 401(k).

“However, so much of the 401(k) that is amassed by your son during his marriage to his wife will be subject to equitable distribution, and therefore, she will have a claim to share in those benefits,” he said. “Accordingly, she will be able to contest your claim to 100% of such assets in probate.”

As for a savings account, it depends on how the account is titled, White said.

“If your son’s and your name appear on the same as joint co-owners and he was to pass, then you may likely retain 100% of such account,” he said.

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This story was originally published on Sept. 13, 2021. presents certain general financial planning principles and advice, but should never be viewed as a substitute for obtaining advice from a personal professional advisor who understands your unique individual circumstances.