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Pre-Nups and ERISA

By ALM Staff | Law Journal Newsletters |
October 06, 2003

Take a second look at your prenuptial agreements. Do they adequately
protect retirement accounts from the reaches of ERISA? Chances are they do not. ERISA has specific requirements to effectuate a spousal waiver of rights to a participant's retirement benefits. The 4th U.S. Circuit Court of Appeals for the Eastern District of North Caroline held over a year ago that if these requirements are not met, a waiver of these benefits in a prenuptial agreement will not be enforceable.


In that particular case, the court found that the waiver requirements of ERISA must be strictly enforced, as they were enacted to protect against a spouse's unwitting waiver of those rights. Other federal courts have similarly held that prenuptial agreements cannot satisfy the ERISA requirements on waiver.

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