My husband and I are legally separated. In our separation agreement papers, we each gave up the right to each other's 401Ks, retirement, etc. We do not plan to file for divorce at this time. I have changed jobs and want to sign up for the 401K at my new employer. However, they are advising he has to sign the waiver of beneficiary form even though we have a court order already in place. Is that really the law? It doesn't seem correct when this is not "mutually accrued" income. Thanks!

Well, from my perspective, its because you are only separated... not actually divorced yet. Thus technically you are still spouses and legally required to get that waver.

However, have some patience... you will get other peoples take on this as well.


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They should accept the separation agreement but they want to cover themselves. Why can't you just get him to sign the waiver?

You may also want to read the agreement carefully. It may specify existing retrement benefits, but not future ones.

I agree with ScottGem - if you are legally separated your employer's plan should not require a signed spousal waiver. I think they are being overly cautious. Attached is a snip from IRS regs that addresses this subject - see item 'c'. This is from Internal Revenue Manual - 4.72.9 Qualified Joint and Survivor Annuity Requirements (http://www.irs.gov/irm/part4/irm_04-072-009.html)

Ebaines gave you the IRS regs, take that back to them. However, you should first check the order. If the order only specifies accounts existing at the time the order was issued, it may not apply to a new account.