03 May My ex died. Can I claim his retirement benefits?

Q. My ex passed away when he was 56. I’m 46. Would I be able to claim his 401(k)? And how do I know who is on his benefits?
— Hopeful

A. We’re sorry to hear about your ex.

The answer to your question is, as it often is, “it depends.”

When a couple divorces, the rights, responsibilities and other terms relevant to the parties’ divorce are addressed within either a marital settlement agreement or a final judgment of divorce, said Kenneth White, a certified matrimonial attorney with Shane and White in Edison.

“A marital settlement agreement is drafted when a divorcing couple can agree by way of settlement how all the terms, conditions and limitations related to issues relevant to their divorce are to be addressed,” he said. “In the event that a divorcing couple cannot reach a settlement, a judge would hold a trial, and at the conclusion of the trial a judge would make findings of fact and draw conclusions of law from which the judge will set the binding terms, conditions and limitations of the divorce.”

Whether by settlement or determination of a judge after a trial as part of finalizing your divorce from your ex, what was to happen with your ex’s retirement benefits (401k) should have been addressed, White said.

Specifically, there should be language reading how the retirement benefits were to be distributed between your ex and yourself, for example, that you would each receive 50% of the share of such benefits amassed during the marriage, plus or minus any passive gains or losses attributable to such funds until the date of distribution. Or, he said, the controlling language may read that your ex was to retain all right, title and/or interest amassed in his/her retirement benefits, therefore excluding you from a right to any portion of the benefits.

So it’s time to take a look at your paperwork.

If for some reason you do not have a copy, White said, you may want to contact the attorney you used for your divorce as attorneys typically hold onto their files for at least seven years, he said. You could also secure a copy from the Family Law Division of the county where your divorce was finalized.

“Had you been named as a beneficiary of your ex’s 401(k) benefits or a life insurance policy, you would have likely been contacted by the company responsible for overseeing the benefits at issue,” White said.

You can always try asking the plan administrator in charge of the plan through your ex’s former employer.

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This story was originally published on May 3, 2023.

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.