Magazine article The CPA Journal

Spousal Waiver of Pension Benefits Held Ineffective

Magazine article The CPA Journal

Spousal Waiver of Pension Benefits Held Ineffective

Article excerpt

The pension law protects the rights of individuals who are married to spouses who participate in qualified pensions plans. In general, a spouse is entitled to a joint and survivor annuity when the participant spouse begins receiving annuity distributions. This assures the spouse that he or she will continue to receive a pension after the other spouse is deceased. In addition, upon the death of a spouse who is covered by a plan, the surviving spouse is entitled to the pension benefits of the decedent. the surviving spouse is deemed to be the beneficiary irrespective of who is designated by the participant as the beneficiary.

WAIVER MUST COMPLY WITH ERISA

An exception to this rule is if the spouse waives the benefits to which he or she is entitled. In order for a waiver to be effective, the waiver must comply with the requirements of ERISA Sec. 1055 (c) and IRC Sec. 417(a) which provide that:

1. It must be in writing;

2. The beneficiary or form of benefit must be stipulate din the waiver. The waiver may grant permission to the participant to select any beneficiary; and

3. The consent must be signed and its effect acknowledge by the spouse. In addition, the signing must be witnessed by a plan representative or notary public.

In a recent case, Hurwitz v. Sher, 92-1 USTC P 50,213, U.S. District Court, So. Dist., N.Y., (April 8, 1992), the surviving spouse had signed a pre-nuptial agreement one week prior to their marriage, giving up claim to the participant's pension benefits. …

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