This article originally appeared in The Colorado Lawyer / February 2004 / Vol. 33, No. 2 / 43
Prenuptial Agreements and
Retirement Plan Assets
by Marcia Chadwick Holt and Rachel R. James
This column is sponsored by the CBA Trust and Estate Section. The column focuses on trusts and estate law
topics, including estate and trust planning and administration, elder law, probate litigation, guardianships and
conservatorships, and tax planning.
Column Editor:
David W. Kirch, of David W. Kirch, P.C., Aurora — (303) 671-7726, dkirch@qwest.net
About The Authors:
This month’s article was written by Marcia Chadwick Holt, Denver, a partner with Davis Graham & Stubbs LLP —
(303) 892-7320, marcia.holt@dgslaw.com; and Rachel R. James, Denver, an associate with the same firm —
(303) 892-7214, rachel.james@dgslaw.com.
Although a prenuptial agreement generally is effective to waive a spouse’s rights to qualified retirement plan
benefits upon divorce, it usually is ineffective to waive a surviving spouse’s rights to such benefits upon the
plan participant’s death. This article reviews the rules that create spousal rights in qualified retirement plans
and requirements to waive such rights.
Estate planning practitioners often draft prenuptial agreements for individuals with qualified retirement
plans (“retirement plans” or “plans”).1 Such retirement plans may constitute a significant portion of the assets
of parties who anticipate being married. Consequently, many people enter prenuptial agreements to control the
disposition of their retirement plan assets in the event of divorce or death. However, a prenuptial agreement
will not necessarily accomplish the parties’ goals, because the provisions regarding retirement plans may not
be enforceable under federal law.
This article reviews the rules that create spousal rights in retirement plans, including defined benefit,
money purchase pension, target benefit, and certain other defined contribution plans.2 The article discusses
spousal rights under retirement plans and the requirements to waive such rights. It also addresses how a
prenuptial agreement may constitute an effective waiver of spousal rights under a retirement plan upon divorce,
but not upon the participant’s death.
Prenuptial Agreements And Divorce
Under the Colorado Marital Agreement Act (“Act”),3 prenuptial agreements are enforceable, provided
that: (1) they are signed voluntarily; (2) there is fair and reasonable disclosure of the parties’ property and
financial obligations at the time of execution; and (3) the agreement is not unconscionable at the time its
provisions are enforced.4 Nevertheless, to the extent that federal law prevents a binding agreement, the Act
specifically limits an individual’s ability to address retirement plan rights and obligations in a prenuptial
agreement.5 Therefore, the retirement plan provisions in a Colorado prenuptial agreement must not conflict
with federal law.
The Employee Retirement Income Security Act of 1974, as amended (“ERISA”)6 is the federal law that
preempts state laws regulating retirement plans. However, ERISA does not preempt state laws regulating either
the dissolution of marriage or the waiver of interests in retirement plans upon divorce.7
Although ERISA provides detailed spousal rights and consent provisions that protect a spouse upon the
participant’s death, ERISA contains no similar provisions to protect a spouse upon divorce from the participant.8
The absence of such ERISA provisions indicates that Congress did not intend to supersede state domestic
relations law.9 In fact, the qualified domestic relations order (“QDRO”) exception to ERISA’s antialienation
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Davis Graham & Stubbs LLP
provisions appears to defer to state law upon a participant’s divorce. Under the QDRO exception, ERISA allows
the division of a spouse’s retirement plan benefits under a state court order upon divorce.10
The Colorado Court of Appeals adopted this reasoning in In re the Marriage of Rahn.11 In Rahn, the
parties executed a prenuptial agreement one week before their wedding. The agreement included a general
waiver of rights to the parties’ separate property acquired prior to and during their marriage. When the
prenuptial agreement was executed, the husband had a vested interest in a retirement plan that continued to
increase in value throughout their marriage. In conjunction with their divorce, the wife filed an appeal in which
she asserted that the prenuptial agreement did not constitute an effective waiver of her rights to the husband’s
retirement plan. The court enforced the prenuptial agreement with respect to the husband’s retirement plan
and held that
ERISA does not preempt state dissolution of marriage law with respect to the
waiver of all interests in a[n] ERISA-qualified retirement plan in a dissolution
of marriage proceeding.12
Thus, a retirement plan participant may enter into a prenuptial agreement to prevent all, or any part, of
his or her retirement plan benefits from being subject to division upon divorce, as long as the agreement
complies with Colorado law. This usually can be accomplished in the prenuptial agreement. First, the
retirement plan benefits must be identified as separate property. Second, the prenuptial agreement must
contain a clause that provides that neither spouse may obtain an interest in the other’s separate property or any
related appreciation if such property is: (1) separate property when the prenuptial agreement is executed; or
(2) later purchased or acquired and held as separate property.13
Prenuptial Agreements And Participant’s Death
Although ERISA does not preempt state domestic relations law, the Internal Revenue Code of 1986, as
amended (“Code”), and ERISA protect a surviving spouse’s rights to retirement plan benefits upon the
participant’s death. ERISA and the Code each contains provisions that establish spousal rights with regard to
the benefits of married persons who participate in certain retirement plans.14 These rules require that the
normal forms of benefit for married participants be qualified joint and survivor annuities (“QJSAs”) and qualified
preretirement survivor annuities (“QPSAs”). QJSAs and QPSAs are sometimes collectively referred to in this
article as “survivor annuity rules.”15
To determine the impact, or lack thereof, of a prenuptial agreement on the survivor annuity rules, it is
important for practitioners to review such rules. Specifically, it is necessary to examine QJSAs and QPSAs and
the beneficiary designation requirements under plans that are exempt from the QJSA and QPSA requirements,
as well as the requirements to waive such spousal rights.
Plans Subject to Survivor Annuity Rules
The survivor annuity rules generally apply to defined benefit, money purchase, and target benefit
plans.16 In addition, defined contribution plans — other than money purchase pension and target benefit
plans — also may be subject to the survivor annuity rules if such plans either fail to satisfy the requirements for
exemption or voluntarily apply the survivor annuity rules.17 It is important to determine whether a plan is
subject to the survivor annuity rules. This may be done by reading the plan or summary plan description or by
consulting with the plan administrator to determine the terms of the plan.
Overview of QJSAs And QPSAs
If a plan is subject to the survivor annuity rules, a participant or beneficiary does not have the option to
elect between a QJSA and QPSA. The determination of whether the benefit will be a QJSA or QPSA will depend
on when the participant dies.
QJSA: If a married participant survives to his or her annuity starting date, a QJSA is the normal form of
benefit under a plan that is subject to the survivor annuity rules.18 A QJSA is an annuity for the life of the
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participant with a survivor annuity for the life of the participant’s surviving spouse, which is at least 50 percent
but no more than 100 percent, of the annuity payable to the participant during his or her lifetime.19 Generally,
the participant’s annuity starting date is the first day of the first period for which an amount is paid, not the
actual date of payment.20
QPSA: If a married participant dies prior to his or her annuity starting date, a QPSA is the normal form
of benefit under a plan that is subject to the survivor annuity rules.21 A QPSA is an annuity for the participant’s
surviving spouse that is not less than the survivor annuity the spouse would have received based on the
participant’s service as of the date of the participant’s death.22 The calculation of a QPSA depends on whether
the plan is a defined contribution or defined benefit plan.
If the plan is a defined benefit plan, the QPSA calculation depends on whether the married participant
dies before or after attaining the earliest retirement age under the plan. If the married participant dies after
attaining the earliest retirement age under the plan, the QPSA is calculated as if the participant retired with a
QJSA as of the day prior to his or her death. If the married participant dies prior to attaining the earliest
retirement age under the plan, the QPSA is calculated as if the participant: (1) separated from service on his or
her date of death; (2) survived to the earliest retirement age; (3) retired on such date with a QJSA; and (4) died
one day later.23
A QPSA under a defined contribution plan is equal to at least 50 percent of the participant’s vested
account balance.24 Unless the plan provides otherwise, only 50 percent of the participant’s account is subject to
survivor annuity rules. Thus, the participant may name a non-spouse beneficiary for up to 50 percent of his or
her account without spousal consent.
Reasons to Waive a QJSA or QPSA
A married participant might waive a QJSA to maximize his or her lifetime benefit. Many plans provide
that the QJSA is the actuarial equivalent of the single life annuity earned under the plan. Under such a plan,
annuity payments during the participant’s lifetime are higher if there is no survivor annuity. A married
participant also might waive a QJSA, a QPSA, or both, if he or she wishes to name a non-spouse beneficiary of
his or her retirement plan.
It is important to determine whether a waiver can accomplish the participant’s goals. For example, if
the survivor annuity is fully subsidized by the plan, a waiver will not result in a larger benefit to the participant
during his or her lifetime.25 Also, many plans will not allow the married participant to name a non-spouse
beneficiary; therefore, a waiver would be meaningless. In either situation, it is essential to have knowledge of
the plan’s provisions in order to accomplish the client’s goals.
Plans Exempt from Survivor Annuity Rules (“Exempt Plans”)
With the exceptions of money purchase pension and target benefit plans, defined contribution plans
are eligible for exemption from the survivor annuity rules. However, exemption is conditioned on the plan
satisfying five requirements in relation to the participant to whom the distribution is made.
1.
The plan must provide that the participant’s entire vested account is payable to the
participant’s spouse. If the participant designates a non-spouse as the primary beneficiary, the designation is
ineffective unless his or her spouse consents.
2.
The participant must not elect to receive his or her benefits in the form of a life annuity.
3.
The plan must not be a transferee or offset plan with respect to the participant.26
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4.
The participant’s entire vested account must be available to his or her surviving spouse within
a reasonable period after the participant’s death. This is generally the ninety-day period following the
participant’s date of death.
5.
The benefit distributed to the participant’s surviving spouse must be adjusted for gains or
losses that occur after the participant’s death and before distribution to the participant’s surviving spouse 27
Several administrative decisions may subject an otherwise exempt retirement plan to the survivor
annuity rules. For example, a plan may allow participants to elect an annuity form of benefit or make trustee-totrustee transfers from plans subject to the survivor annuity rules without requiring a waiver of spousal rights. In
this case, the benefits of a married participant who elects such an annuity or makes such a transfer will be
subject to the survivor annuity rules.28 Similarly, a retirement plan otherwise exempt from the survivor annuity
rules may voluntarily adopt such requirements and offer QJSAs and QPSAs as the normal forms of benefit.
These kinds of requirements often are found in 401(k) plans sponsored by insurance companies that
sell annuities. Therefore, it is important to determine whether the survivor annuity rules apply to a client’s
retirement plan, even if the retirement plan is eligible for exemption from such requirements.
Reasons to Waive Spousal Rights Under Exempt Plan
Many married participants wish to name a trust or an individual other than their spouse as the
beneficiary. This is especially likely when there are children from a prior marriage or the participants have other
estate planning purposes, such as qualifying property to be given to beneficiaries.
Requirements to Waive Spousal Rights
Spousal rights may be waived only if a waiver is allowed under the specific retirement plan. A party
may have accounts in the plans of more than one employer, and each retirement plan may have different rules.
Even if a plan allows the participant to waive QJSA and QPSA benefits and to designate a non-spouse
beneficiary, the participant’s spouse must consent to a waiver. Spousal consent must be given after the parties
are married; it cannot be given in a prenuptial agreement.
Spousal consent will be valid only if five requirements are satisfied. The spousal consent must: (1) be
given within the applicable election period; (2) be in writing; (3) designate a beneficiary, benefit form, or both;
(4) acknowledge the effect of the election; and (5) be witnessed or notarized. As discussed below, different
rules apply for QJSAs, QPSAs, and exempt plans.
Spousal Consent Within Applicable Election Period
Spousal consent will not be valid unless it is made within the applicable election period. The
commencement and duration of the applicable election period depends on whether a QJSA, QPSA, or rights
under an exempt plan are being waived.
QJSAs: The applicable election period for waiving a QJSA is the ninety-day period ending on the
participant’s annuity starting date.29 As noted earlier, the participant’s annuity starting date is the first day of
the first period for which an amount is paid, not the actual date of payment.30 However, the Sixth Circuit Court
recognized an exception to this rule for participants who retire prior to the normal retirement date.31 The
annuity starting date for such participants is the earliest of the participant’s normal retirement date or the date
the first payment is made to the participant.32 As a practical matter, a change in circumstances and intervening
years may make it difficult to convince a spouse to waive a QJSA, regardless of what the spouse agreed to in the
prenuptial agreement.
QPSAs: The applicable election period for waiving a QPSA is the period that begins on the first day of
the plan year in which the participant attains age 35 and ends on the date of the participant’s death.33 A married
participant may submit a QPSA waiver and spousal consent prior to the QPSA applicable election period.
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However, that election will become invalid and a new election and consent must be filed on the first day of the
year in which the participant attains age 35.34
Obtaining spousal consent to QPSA waivers may be challenging, because motivations that existed
when a prenuptial agreement was executed may no longer exist when it is time to execute the waiver and the
consents after the wedding. If the parties are at least age 35 and the plan permits a QPSA waiver, the plan QPSA
waiver forms should be completed, attached to the unexecuted prenuptial agreement, and sent to the parties
for signing as soon as possible after the wedding date. Although such a QPSA waiver will not be effective
unless it is executed after the wedding, taking these steps makes the timely execution of the waiver more
convenient.
Exempt Plans: The applicable election period is any time prior to the participant’s death.35 Although
the parties’ motivations to consent to a non-spouse beneficiary designation may change after the parties are
married, such a consent must be executed only once after the wedding, regardless of the parties’ age upon
execution. If the plan permits the participant to name a non-spouse beneficiary, the plan forms should be
completed, attached to the unexecuted prenuptial agreement, and sent to the parties for signature as soon as
possible after the wedding date. Although such a beneficiary designation will not be effective unless it is
executed after the wedding, taking these steps makes the timely execution of the waiver more convenient.
Spousal Consent in Writing
Ordinarily, the plan administrator will require spousal consent on its administrative forms. Alternate
forms usually will be rejected by plan administrators in favor of the plan’s forms. If a married participant and
his or her spouse wish to waive benefits under a plan, appropriate waiver forms should be obtained from the
plan administrator.
Spousal Consent Designations
The content of the participant’s waiver depends on whether a plan is subject to the survivor annuity
rules and the type of spousal consent given in relation to the waiver. A participant’s spouse also may restrict
the participant’s ability to change the waiver by giving a general, limited general, or specific consent to the
participant’s waiver.
General or Limited General Spousal Consent: If the spouse is advised of his or her right to limit consent
to a specific beneficiary, benefit form, or both, the spouse may give a general consent or a limited general
consent to the participant’s waiver. A general consent permits the participant to make future changes to the
beneficiary, benefit form, or both, without additional spousal consent. A limited general consent allows the
participant to change beneficiaries, benefit forms, or both, to certain specified beneficiaries or forms, without
additional spousal consent.36
If the spouse will not agree to a general or limited general consent, a similar result may be achieved by
obtaining spousal consent to designate a revocable trust as the beneficiary of the plan. With this beneficiary
designation, additional spousal consent would not be required to change the trust’s beneficiaries.37
Specific Spousal Consent: A specific consent to a participant’s election to waive a QJSA or a QPSA must
name the non-spouse beneficiary. The participant may not later change the beneficiary to another non-spouse
beneficiary without additional spousal consent.38 A specific consent to a participant’s election to waive a
QJSA — but not a QPSA — also must specify the form of benefit. Thus, a participant who waives a QJSA is
prohibited from changing the benefit form, other than to a QJSA, without additional spousal consent. If the
benefit form is specified in a QPSA waiver, the participant may change the specified benefit form without
additional spousal consent.39
A specific consent to a participant’s election to name a non-spouse as the beneficiary of an exempt plan
must name the non-spouse beneficiary, but such an election is not required to specify the form of benefit. The
participant may not later change the beneficiary to another non-spouse beneficiary without additional spousal
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consent. However, even if the benefit form is specified in the election, the participant may change the specified
benefit form without additional spousal consent.40
Acknowledgment of Effect
The plan administrator is required to provide participants with notice regarding the effect of the waiver.
Generally, the election forms and notices provided by the plan administrator will satisfy this requirement by
including a statement that the participant and his or her spouse have received the required notices and
acknowledge the effect of the waiver and consent.41
Witnessing or Notarization
ERISA and the Code require that the spouse’s signature be witnessed by a plan representative or a
notary public.42 However, in the absence of a dispute regarding the validity of the spouse’s signature, a spousal
consent form will be enforced, regardless of whether the spouse’s signature is witnessed or notarized.43
Prenuptial Agreements And Spousal Rights at Death
The federal courts have not yet decided a case in which a prenuptial agreement has been an effective
spousal waiver of retirement plan benefits at death. However, certain courts have stated in dictum that a
prenuptial agreement that satisfies all of the spousal consent requirements could constitute an effective waiver
of spousal rights at death.44 Nonetheless, most courts agree that a prenuptial agreement cannot constitute
such a waiver because the parties entering the prenuptial agreement are not married. As long as the parties are
not married, the participant does not have a spouse and, therefore, cannot waive spousal rights at death under
federal law.45
Although one court has held to the contrary, it is unlikely that the courts will enforce the terms of a
prenuptial agreement that waived spousal rights at death under a state law breach of contract claim.46 Such a
claim most likely would be interpreted as regulating retirement plans because it changes the identity of the
beneficiary from the beneficiary required under ERISA and, as such, would be preempted by ERISA.47
To effectively waive spousal rights under a retirement plan at death, a waiver and consent should be
executed after the parties are married and according to the plan’s requirements. A waiver in a prenuptial
agreement generally will not be sufficient. In most instances, the retirement plan will require the waivers and
consents to be submitted on the plan’s forms.
Conclusion
Estate planning practitioners should recognize that a prenuptial agreement usually is effective to waive
spousal rights to qualified retirement plan benefits upon divorce. However, a prenuptial agreement generally is
ineffective to waive a surviving spouse’s rights to qualified retirement plan benefits upon the plan participant’s
death.
If the plan participant wishes to waive the spousal rights to plan benefits after marriage, it is important
to review the plan or summary plan description or contact the plan administrator to: (1) determine what rights,
if any, may be waived; (2) determine the appropriate election period; and (3) obtain the forms necessary to
waive such rights. Once these steps have been taken, it is important to make sure that each of the five
requirements for a spousal consent are satisfied. If that is done, the waiver and spousal consent will be valid
and enforceable upon both divorce and the participant’s death.
NOTES
1
For purposes of this article, a qualified retirement plan or retirement plan is a plan that is qualified under IRC
§ 401(a). Treas. Reg. § 1.401(a)-20, A-1. It does not include an IRA.
2
Treas. Reg. § 1.401(a)-20, A-3; Prop. Treas. Reg. § 1.412(a)-1(a).
3
CRS Title 14, Part 3.
4
CRS § 14-2-307.
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5
CRS § 14-2-304(l)(g).
Pub.L. 93-406, 93d Cong.2d Sess. (1974), codified at 29 U.S.C. § 1101-14 (1988).
7
In re the Marriage of Rahn, 914 P.2d 463, 468 (Colo.App. 1995); Sabad v. Fessenden, 825 A.2d 682 (PA.Super.
2003); Edmonds v. Edmonds, 184 Misc.2d 928 (N.Y.Sup.Ct. 2000).
8
Sabad, supra, note 7 at 695.
9
Rahn, supra, note 7 at 466.
10
29 U.S.C. § 1144(b)(7).
11
Rahn, supra, note 7.
12
Id. at 468.
13
Id. at 464.
14
E.g., defined benefit, money purchase pension, target benefit, and certain other defined contribution plans. IRC
§§ 401(a)(11) and 417; 29 U.S.C. § 1055.
15
IRC § 401(a)(11)(A); 29 U.S.C. § 1055(a).
16
Treas. Reg. § 1.401(a)-20, A-3; Prop. Treas. Reg. § 1.412(a)-1(a).
17
A defined contribution plan, other than a money purchase pension or target benefit plan, is exempt from the QJSA
and QPSA requirements in relation to a participant if: (1) the participant’s benefit is payable in full to his or her
surviving spouse, unless the participant elects otherwise with the consent of his or her spouse; (2) the participant does
not elect to receive his or her benefits in the form of a life annuity; (3) the plan is not a transferee or an offset plan;
(4) the benefit is available to the surviving spouse within a reasonable period after the participant’s death; and (5) the
benefit payable to the surviving spouse is adjusted for gains or losses that occur after the participant’s death and prior to
distribution in accordance with the plan’s provisions. Treas. Reg. § 1.401(a)-20, A-3.
18
Treas. Reg. § 1.401(a)-20, A-8(a). Retirement plans are not required to provide a QJSA if the participant is married
for less than one year prior to his or her death. IRC § 417(d); 29 U.S.C. § 1055(b)(3).
19
IRC § 417(b); 29 U.S.C. § 1055(d). Upon the participant’s death, the plan may provide the survivor with the option
to receive benefits in a form other than a survivor annuity. Treas. Reg. § 1.401(a)-11(c)(5).
20
Treas. Reg. § 1.401(a)-20, A-10(b).
21
Treas. Reg. § 1.401(a)-20, A-8(a). Retirement plans are not required to provide a QPSA if the participant is married
for less than one year prior to his or her death. IRC § 417(d); 29 U.S.C. § 1055(b)(3).
22
Upon the participant’s death, the plan may provide the survivor with the option to receive benefits in a form other
than a survivor annuity. Treas. Reg. § 1.401(a)-11(c)(5).
23
A defined benefit plan also may provide for the forfeiture of the QPSA if the spouse dies prior to the earliest of:
(1) the date the participant would have attained the earliest retirement date under the plan; (2) the QPSA distribution
date under the plan; or (3) a deferred commencement date, if one was elected by the spouse. Treas. Reg. § 1.401(a)-20,
A-19.
24
Treas. Reg. § 1.401(a)-20, A-20.
25
A survivor annuity is fully subsidized if the participant’s monthly annuity is the same amount regardless of whether
his or her spouse will receive a survivor annuity. Treas. Reg. § 1.401(a)-20,A-38.
26
A plan is a “transferee plan” with respect to a participant if the plan accepts a transfer on or after January 1, 1985 of
the participant’s benefits from a plan that is subject to the survivor annuity rules. A plan is an “offset plan” with
respect to a participant to the extent that the plan’s benefits for that participant are used to offset the participant’s
benefits under a plan that is subject to the survivor annuity rules. Treas. Reg. § 1.401(a)-20, A-5.
27
See note 17, supra, for the other exemption requirements.
28
Treas. Reg. §§ 1.401(a)-20, A-4, A-5.
29
IRC §§ 417(a)(1)(A)(i) and (a)(6)(A); 29 U.S.C. §§ 1055(c)(1)(A)(i) and (c)(7)(A). Under pending legislation, the
ninety-day period would be extended to 180 days. Preamble to Final Regulations under IRC § 417(a)(7) (July 16,
2003).
30
Treas. Reg. § 1.401(a)-20, A-10(b).
31
Shields v. Readers’ Digest Ass’n, Inc., No. 01-2118 (6th Cir. 2003).
32
Id.
33
IRC §§ 417(a)(1)(A)(i) and (a)(6)(B); 29 U.S.C. §§ 1055(c)(1)(A)(i) and (c)(7)(B).
34
Treas. Reg. § 1.401(a)-20, A-33(b).
35
Treas. Reg. § 1.401(a)-20, A-32(b).
36
Treas. Reg. § 1.401(a)-20, A-31(c).
37
Treas. Reg. § 1.401(a)-20, A-31(a).
38
Id.
6
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39
Treas. Reg. § 1.401(a)-20, A-31(b).
Treas. Reg. §§ 1.401(a)-20, A-31(a), (b)(2), and A-32(b).
41
Treas. Reg. § 1.417(a)(3)-1.
42
IRC § 417(a)(2)(A)(iii); 29 U.S.C. § 1055(c)(2)(A)(iii). In the absence of a dispute regarding the validity of the
spouse’s signature, a spousal consent form will be enforced, regardless of whether the spouse’s signature is witnessed
or notarized.
43
Butler v. Encyclopedia Brittanica, Inc., 41 F.3d 285 (7th Cir. 1994).
44
Callahan v. Hutsell, U.S. Court of Appeals, Nos. 92-5796, 92-5797, and 92-5862, (6th Cir. Dec. 20,1993)
(unreported), vacating Callahan v. Hutsell, 813 F.Supp. 541 (W.D.Ky. 1992) (court did not agree with position that a
future spouse unable to give consent effective on becoming a spouse, but did not reconcile issue because prenuptial
agreement did not satisfy consent requirements); In re Estate of Hopkins, 574 N.E.2d 230 (Ill.App.Ct. 1991) (court
dismissed Treas. Reg. § 1.401(a)-20, A-28 as an interpretative rule inapplicable to case.) Of note, the Callahan and
Hopkins cases subsequently have been criticized for circumventing the requirements of valid consent under ERISA in
dicta. Hurwitz v. Sher, 982 F.2d 778 (2nd Cir. 1992); Zinn v. Donaldson Co., Inc., 799 F.Supp. 69 (D.Minn. 1992).
Additionally, Hopkins relied heavily on the reasoning in Fox Valley & Vicinity Constr. Workers Pension Fund v.
Brown, 897 F.2d 275 (7th Cir. 1990), which conflicts with Egelhoff v. Egelhoff, 532 U.S. 141 (2001).
45
Treas. Reg. § 1.401(a)-20, A-28. See also Hurwitz, supra, note 44; Zinn, supra, note 44; Nellis v. Boeing Co.,
15 E.B.C. 1651 (D.Kan. 1992); Pedro Enters., Inc. v. Perdue, 998 F.2d 491 (7th Cir. 1993).
46
Callahan, supra, note 44 (if spouse refused to sign spousal consent, court would disgorge her of any benefits she
received as result of her breach of premarital contract).
47
Arana v. Ochsner Health Plan, No. 01-30922 (5th Cir. 2003) (state law claims seeking relief within scope of
29 U.S.C. § 1132(a)(1)(B) are completely preempted). ERISA addresses civil actions by participants or beneficiaries to
recover benefits due under the terms of the plan, enforce rights under the plan, or clarify rights to future benefits under
the plan.
40
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