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Antenuptial Agreements/Waiver/ERISA Rights
© 1997 National Legal Research Group, Inc.
COLORADO: In re Marriage of Rahn, 914 P.2d 463 (Colo. Ct. App. 1995).
The law is now rather clear that parties to an antenuptial agreement cannot waive spousal death benefits under ERISA. In a recent case, the parties executed an antenuptial agreement whereby the parties agreed that "[a]ll of the property now owned or hereafter acquired by [husband] will remain his sole and separate property throughout the marriage. [Wife] shall not claim or acquire any interest in any of his property if it increases in value during the marriage, jointly held property being excepted." 914 P.2d at 464. The wife contended that the trial court erred when it determined that she waived her spousal rights to her husband's ERISA-qualified pension plan. The husband contended that the federal statutes and regulations address the waiver of survivor benefits only, and are silent as to other types of pension benefits. Thus, the antenuptial agreement was a valid waiver of the wife's rights in the pension plan. The court agreed with the husband. The court reasoned that ERISA provides explicit requirements for a spouse's waiver of rights to the "qualified joint and survivor annuity" and to the "qualified pre-retirement survivor annuity" in a qualified ERISA plan. Regulations interpreting ERISA's statutory requirements specifically state:
- An agreement entered into prior to marriage does not satisfy the applicable requirements, even if the agreement is executed within the applicable election period.
Treas. Reg. 1.401(a)-20 Q & A 28 (1988).
Thus, a waiver in an antenuptial agreement of a right to survivor benefits in an ERISA-qualified plan is ineffective, and the surviving spouse is entitled to the survivor benefits even though others are named as survivor beneficiaries with the plan administrator. ERISA does not, however, preempt state dissolution of marriage law with respect to the waiver of all interests in an ERISA-qualified retirement plan. In re Marriage of Rahn, 914 P.2d 463 (Colo. Ct. App. 1995).
Editor's Note: Other cases have taken the same position that a waiver of a right to survivor benefits in an ERISA-qualified plan in a prenuptial agreement is ineffective, Hurwitz v. Sher, 982 F.2d 778 (2d Cir. 1992); Howard v. Branham & Baker Coal Co., 968 F.2d 1214 (6th Cir. 1992); Pedro Enterprises v. Perdue, 998 F.2d 491 (7th Cir. 1993); National Automobile Dealers v. Arbeitman, 89 F.3d 496 (8th Cir. 1996); Nellis v. Boeing Co., 1992 WL 122773 (D. Kan. 1992); Callahan v. Hutsell, Callahan & Buchino, P.S.C., 813 F. Supp. 541 (W.D. Ky. 1992); Zinn v. Donaldson Co., 799 F. Supp. 69 (D. Minn. 1992), but that ERISA does not prevent the waiver of other pension benefits. Fox Valley & Vicinity Construction Workers Pension Fund v. Brown, 897 F.2d 275 (7th Cir. 1990); Moor-Jankowski v. Moor-Jankowski, 222 A.D.2d 422, 634 N.Y.S.2d 728 (1995). Some cases have held that a prenuptial agreement cannot waive any rights under an ERISA-qualified plan. Richards v. Richards, ___ Misc. 2d ___, 640 N.Y.S.2d 709 (Sup. Ct. 1995); see also Vetrano, Spousal Waiver of Pension Rights, Premaritally and Upon Divorce, 13 Fair$hare No. 9 (Sept. 1993).
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