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#771088 - 12/01/15 12:54 AM question re divorce decree and 401K beneficiaries
dar Offline

recently joined

Registered: 12/01/15
Posts: 3
Hi all,

Glad to be here. I'll do bullets to make it simple:

*My ex husband (of 13 years) died recently and left his 401K to his elderly parents and our minor child (designated as primary beneficiaries).

*I was remarried two years ago. We have no children, and I have custody of my ex's child.

*the DD says that I get coverture fraction of the 401K (of my portion - 13 years of marriage).

Question: I know that technically I will be able to have my child's portion (33%) for her needs, but can I claim any more than that? Will his parents get their 67% share as primary beneficiaries, or does their portion belong to me?

Any and all help is very welcome.

thanks so much.
D.

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#771089 - 12/01/15 10:06 PM Re: question re divorce decree and 401K beneficiaries [Re: dar]
TJMH Online   content

enthusiast

Registered: 07/17/15
Posts: 338
If your property settlement said that you got a portion of his 401K that should have been transferred to you at the time--did that not happen?

If not, it seems to me that your ex's estate still owes you your share, and the remainder should be split between his parents and your child. If you have custody of the child then you probably also control that money.

Your share should have been transferred to you without any tax consequences if it was pursuant to a QDRO and you roll it into an IRA (i.e. don't take it in cash). I'm not sure the tax consequences of withdrawing from a deceased person's 401k--I think you pay the income tax but no penalty.

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#771090 - 12/05/15 07:13 AM Re: question re divorce decree and 401K beneficiaries [Re: TJMH]
dar Offline

recently joined

Registered: 12/01/15
Posts: 3
Hi TJMH, sorry for the delay in replying.

Yes, that makes sense. And, no, nothing has been disbursed as of yet because we are still in limbo with the final COD.

Quick update: we never finished a QDRO. Does that make a difference? Can I finish one now?

Also, he bought a house while we were technically married but separated, but it is in his father's name. Can I do anything about that?

Thanks so much for your answer. Much appreciated.

D.

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#771091 - 12/09/15 09:59 PM Re: question re divorce decree and 401K beneficiaries [Re: dar]
TJMH Online   content

enthusiast

Registered: 07/17/15
Posts: 338
Between the lack of a QDRO and his death, it sounds like the 401k issue is kind of complicated--it seems like you'd still be entitled to your coverture fraction but I'm not sure how/if you can enforce that or what the tax consequences are. I think there are also tax considerations related to your child's share--I don't think you can just cash that out without penalties. It sounds like you need to talk to either a lawyer or a tax advisor, possibly both.

Same with the house--I'd recommend having a quick chat with your divorce lawyer and see if the house should be categorized as community property, and how you go about finalizing the property settlement now that your ex is deceased.

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#771092 - 01/06/16 11:56 AM Re: question re divorce decree and 401K beneficiaries [Re: dar]
Goodmom Offline
Pooh-Bah

Registered: 06/17/07
Posts: 2202
You will get your portion of the 401k, but you are likely to have to go to court to get it.

As for the house, if it wasn't addressed during the divorce, there is nothing you can do about it. I wouldn't waste time and money on the house. Concentrate on your portion of the 401k that was addressed in the divorce and on getting the social security benefits for your child.

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