13 Dec Do I have a right to my ex-husband’s 401(k) plan?

Q. My ex-husband passed away but I was named the beneficiary on his 401(k). Even though we are divorced, do I still have a right to it?
— Hopeful

A. Much will depend on your divorce agreement.

Your question illustrates the importance of updating estate planning documents and beneficiary designations post-divorce.

It also illustrates the importance of having a well-drafted and thorough divorce settlement agreement, which sets forth the rights and obligations of each spouse after divorce, said Thomas Roberto, a family law attorney with Adinolfi, Lieberman, Burick, Roberto & Molotsky in Haddonfield.

“A comprehensive divorce agreement and timely modifications to wills and account beneficiary designations should alleviate any questions or concerns about the rights of a former spouse in and to the other’s retirement assets,” he said.

N.J.S.A. 3B:3-14 revokes, by operation of law, a payable on death beneficiary designation of an ex-spouse.

“This statute would only be controlling, however, if there is no `governing instrument’ addressing the asset in question,” he said. “If there is a governing instrument, such as a marital settlement agreement and/or a Qualified Domestic Relations Order (QDRO), the terms of that governing instrument should be controlling.”

A divorce decree or settlement agreement should specify the rights of each spouse to any retirement assets held by the other, Roberto said. If a divorce decree or settlement agreement provides for one spouse’s interest in the other’s retirement asset, the passing of the other spouse should not, by itself, extinguish that interest, he said.

“If the retirement asset in question is a 401(k), a QDRO would likely have been required post-divorce in order to secure the interest of the receiving former spouse,” he said. “Once prepared and filed with the court, the QDRO would be forwarded to the plan administrator of the retirement account for implementation and distribution to the former spouse.”

If there is no divorce decree, agreement or QDRO confirming the interest of a former spouse in the other’s retirement asset, Roberto said, the former spouse may be hard pressed to prevail on a claim for a portion of that asset, even if they are the beneficiary in name, given the absence of a governing instrument vesting him or her with the right to receive all or a portion of the asset.

Consider reviewing your divorce settlement with a qualified attorney to see what you may be entitled to.

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This story was originally published on Dec. 13, 2021.

NJMoneyHelp.com 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.