Estate Law Questions? Ask an Estate Lawyer.
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I'm afraid I don't have good news, but please understand I'm only informing you what the law is. Please don't shoot the messenger.
Under federal law (ERISA) a spouse is the beneficiary of a 401k unless the spouse signs a waiver of rights. This is true even if there is no designated beneficiary because the spouse is presumed to be the default beneficiary. This is also true regardless of whether the 401k was funded prior to marriage.
As such, the will go to your father's surviving spouse and is not part of his probate estate.
And, unfortunately, that means that you and your siblings to not have a legal claim to any part of the 401k unless his surviving spouse disclaims all or any portion of the 401k
Ok, but what if there is a designated beneficiary form (as there might be on some other accounts) and the wife has not disclaimed the rights, as you note
Then the spouse is still the beneficiary. Nothing overrides the spouse's right, even a separate beneficiary designation, unless the spouse has also signed a waiver.
But that rule only applies to retirement assets covered by ERISA.
A designation on a life insurance policy or bank accounts, etc. would be completely different and the designated beneficiary would be entitled to the assets. You only asked about a 401k though.
Ok, good. He has some assets under stock and bank accounts, presumably (if those have the correct beneficiary) we do not need her consent...thanks
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