Are retirement accounts a guaranteed inheritance for widows & spouses? 5 Retirement Plan Tips for Widows & Surviving Spouses

If you are a surviving spouse or a widow, you may have guaranteed inheritance rights if your husband or wife has a retirement account? Why?  Read on if you are interested in inheritance rights and rights to a non probate asset like a retirement account.

1. Marriage creates inheritance rights. In some states, like Florida, you “get” a “guaranteed” inheritance of 30-50% of your spouse’s estate! Just by being married to that person. (Unless you waived those rights in writing.) And here’s the kicker: duration of marriage doesn’t matter. If you were married for ten seconds in Las Vegas by Elvis, you still have guaranteed inheritance rights in many states, including Florida. Wait a minute…………….. does that mean that if I get married in Vegas and my husband or wifedies 10 seconds later crossing the Vegas Strip, that I  still get a guaranteed inheritance if I did not sign a prenup? Yes !!  Ask any probate lawyer Boca Raton or better yet a probate litigation law firm Palm Beach County, Florida and they will tell you how many times they have dealt with federal law and retirement accounts like 401(k)s, pension plans, defined benefit plans, defined contribution plans. Consider the millions, billions at stake in probate rights and inheritances.  Why?
2. Federal Law creates inheritance rights in retirement accounts. Federal law gives the spouse, a validly married spouse, certain rights to be the one and only beneficiary ofretirement accounts. To name a non spouse as a beneficiary of your retirement account or 401(k) usually requires a signed, written waiver by the spouse.  A waiverfor a retirement account or 401(k) must at all times, to be valid, but knowingly and voluntarily entered into or “given.”   So, be careful before you sign any waivers, you just may be giving away millions of dollars in a 401(k) or other retirement account.
3. Retirement Accounts = Billion$. Most people’s estates or probate include a car, checking account, a house, some personal property, maybe some investments and aretirement account. The retirement account is usually a major asset of one’s estate. There are billion$ of dollar$ in American’s retirement accounts.  But, consider that in addition to federal law, which may creates rights for widows and spouses who survive, you also have to read the retirement plan document.  There may be restrictions on the naming of a beneficiary–including a non spouse– and there may be contingent beneficiaries or alternate beneficiaries.
4. Inheriting the Retirement Account. A spouse who just lost another spouse may still be able to inherit the retirement account even if someone else is the named beneficiary on the beneficiary designation! Even if the retirement account named theestate as beneficiary. Facts can differ, and one can waive their rights, consent to another beneficiary, or sign away those rights in a waiver or prenup. Know your rights to retirement accounts as a widow or surviving spouse. They may be worth a lot more than you think.
5. Probate Litigation? With billions at stake, you guessed it, there will be a fight for your wealth. So, don’t be surprised if the financial company where the retirement account is located  won’t pay our your inheritance from the retirement account because someone else is named as a 401(k) beneficiary. Don’t be surprised if the executor of the will or the personal representative of the Probate won’t recognize your marriage or your rights to inheritance, especially in a state like Florida.  One last note:  states like Florida, now permit, or make it easier, for heirs at law and family members, to attack your marriage after your spouse dies. So don’t be surprised if your probate litigation lawsuit involves not just the millions of dollars in a retirement plan or 401(k), but also the validity of your marriage.