It is becoming more and more common for a marriage to start with an agreement; and we are not talking about the type of cake served at the reception. Nowadays we are seeing an rise in pre-nuptial or even post-nuptial agreements before anyone walks down the aisle. If you are considering this type of prerequisite, make sure you understand them and plan accordingly … or risk an unexpected backfire down the road.
Specifically, and in light of the recent case of Mid-American Pension v. Michael Cox, it is important to appreciate that 401(k) plans and other specific assets with named beneficiaries and separate legal designations are just tricky when it comes to any legal planning. More to the point, pre-nuptial or post-nuptial planning for these assets can be risky, as highlighted in a recent article in The Slott Report titled “Using Post-Nuptial Agreements for Employer Plan Benefits is Risky”
In the case of Mid-American Pension v. Michael Cox, a husband and wife came to an agreement and signed a post-nuptial agreement promising to disclaim any right to the other’s assets in the event of divorce. Mr. Cox filed for divorce (this was the third time, and they had been married to and divorced from each other twice before), but never succeeded because he passed away before the proceedings could be concluded. All the same, Mrs. Cox was supposed to disclaim everything, including his 401(k) plan, but that did not happen. The parents of Mr. Cox were the intended and designated beneficiaries of their son’s 401(k).
When the not-yet-ex-wife and her in-laws went to court, Mrs. Cox prevailed because the proper protocol for disclaiming an interest in retirement funds was not followed. You see, 401(k) plans, pensions, and the like have very specific and legally enforced requirements, and the post-nuptial agreement did not cut the mustard. In fact, a simple form from the plan provider would be necessary in this instance.
Retirement plans and pensions are one thing, but they are not the only assets to consider when entering into a pre-nuptial or post-nuptial agreement. Follow the “carpenter’s rule”- measure twice and cut once. There are few do-overs if the time ever comes when the agreement must be enforced.
For more information visit my Wichita KS Estate Planning Attorney website
Reference: The Slott Report (August 13, 2013) “Using Post-Nuptial Agreements for Employer Plan Benefits is Risky”