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33 Fam. Advoc. 38 (2010-2011)
Making Pension Promises in a Prenup: The Impact of ERISA

handle is hein.journals/famadv33 and id is 160 raw text is: 4 a he Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001, etseq., amend- ed by the Retirement Equity Act of 1984 (REA), I.R.C. § 414(p), is a federal law that governs disposition of qualified retirement plan benefits upon the death of a participant and at divorce. ERISA also governs employee welfare benefits, such as employer-sponsored life insurance. ERISA is implicated whenever a marital agreement addresses these benefits. Here are the key concepts a lawyer must understand to effectively handle a premarital agreement that involves ERISA retirement benefits or life insurance. Spousal rights under ERISA retirement plan ERISA mandates benefits for a surviving spouse in the absence of an effective waiver: M A qualified defined benefit retirement plan must pay a survivor annuity to the spouse of a participant who dies before the annuity starting date, the qualified preretirement survivor annuity (QPSA). E A participant in a defined benefit plan who is married on the date of his or her retirement must elect a qualified joint and survivor annuity (QJSA) form of benefit. MAKING PENSION PROMISES IN A PRENUP: THE IMPACT OF ERISA BY LINDA J. RAVDIN *A state divorce court may award all or a portion of the participant's plan benefits to the spouse (the Alternate Payee or AP) as a division of property. To get direct payment from the plan to the AP, the order must be a Qualified Domestic Relations Order (QDRO). ERISA mandates that the plan honor the QDRO. N A state divorce court may use a QDRO to grant a divorcing spouse the survivor annuity or death benefits under the plan. ERISA mandates that the plan honor the QDRO. Waiver of survivor/ death benefits ERISA does not permit a premarital waiver of a survivor annuity or lump-sum death benefit under a qualified plan. If a plan participant dies after the marriage while still a par- ticipant in the plan, the spouse will get these benefits despite a premarital agreement that pur- ports to waive them. A spousal consent to a participant's waiv- er of the QPSA is not effective until the participant reaches age 35. A spousal consent to waiver of the QJSA is only effective if made within 90 days of the annuity starting date. Additional steps are required after marriage to make a premarital agreement waiver effective. The premarital agreement should include an obligation on the part of the spouse to take these steps, and the participant should be advised about what he or she * Defined contribution plans must pay a married partici- pant's accrued benefit to his or her surviving spouse. In the absence of an effective waiver, a divorcing spouse has certain rights: 38 FAMILY ADVOCATE www.abanet.org/family/advocate must do after marriage: * The participant should obtain a consent form from the plan administrator for waiver of the QPSA or lump- sum death benefit and have the spouse

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