One additional law that must also be complied with, for example, is the Employee Retirement Income Security Act (ERISA), which dictates that a married individual\u2019s pension benefits under an employer retirement plan must be paid to their surviving spouse unless they have obtained a waiver and complied with very specific instructions, including the following:<\/p>\n
- \n
- The spouse consents to the benefits being paid to someone else, in writing<\/li>\n
- This consent is witnessed by a notary public or plan representative<\/li>\n
- This named beneficiary is not changed later on without the spouse\u2019s consent<\/li>\n<\/ul>\n
As a result, simply dictating that a spouse will not be receiving retirement benefits from an employer-sponsored plan in a prenup is not going to be enough to stay out of court; an attorney who is working to ensure that the wishes of the prenuptial agreement are fulfilled must also ensure that the waiver requirements are taken care of at that same time.<\/p>\n
Going to Court<\/strong><\/p>\n
When a prenuptial agreement and beneficiary forms dictate that benefits under an employer\u2019s plan are to be left to a non-spouse, but ERISA\u2019s specific waiver requirements have not been complied with (for example, the spouse never signed a waiver or consented to this person receiving the benefits in writing), different courts have ruled differently in terms of whether the named beneficiary has a right to sue the spouse to try and obtain these benefits. While some have ruled that a promise in a prenuptial agreement does not satisfy the requirements of ERISA and is therefore not binding, others have rejected this contention, finding that the lack of a valid ERISA waiver does not preclude the named beneficiary from pursuing a breach of contract action against the spouse who ended up receiving the benefits.<\/p>\n
However, if this is necessary \u2013 and it only would be if the attorney who executed the prenuptial agreement failed to complete the waiver process under ERISA at the same time \u2013 it inevitably leads to claims and competing claims and long court battles; the lesson learned being that it is far better and easier to simply be as thorough as possible in completing any and all actions that complement the prenuptial agreement early on.<\/p>\n
Contact Our Florida Family Law Attorneys to Find Out More<\/strong><\/p>\n
If you have any questions about prenuptial agreements and what is required to ensure that your wishes and goals are compliant with the law, contact our Orlando prenuptial agreement attorneys<\/a> at the Arwani Law Firm, PLLC today to find out how we can help.<\/p>\n
Resources:<\/p>\n
dol.gov\/general\/topic\/retirement\/erisa<\/p>\n
news.bloomberglaw.com\/employee-benefits\/insight-how-a-prenup-can-trigger-a-brawl-over-retirement-benefits<\/p>\n
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