He Remarried at 65 With $1.8 Million Saved for His Kids and It’s Still Going to His Kids. One Signature After the Wedding, Not the Prenup, Is What Sealed It

If you have a 401(k), a pension, or most other employer retirement plans, federal law hands your spouse the account the second you say “I do,” regardless of what your will, your prenup, or your existing beneficiary form says. That is the rule almost nobody talks about, and it is exactly why a 65-year-old remarrying with $1.8 million saved for his kids from a prior marriage needs one specific signature from his new spouse after the wedding to keep that money on track to his children.

The Buried Rule Inside Your 401(k)

The fine print almost never highlights this: under federal law, your new spouse automatically becomes the beneficiary of your 401(k), 403(b), pension, or other ERISA-governed plan on the day you marry. Your old beneficiary form naming your kids is overridden by operation of law. The only way to keep the children as beneficiaries is a written spousal consent (also called a spousal waiver), signed by your new spouse, witnessed by a plan representative or notarized, and filed with the plan.

That single form is what actually seals the outcome. The plan document overrides prenups, wills, and trusts alike. The plan administrator answers to federal law, and federal law requires a signature from the spouse whose rights are being waived.

A Real Case That Cost One Family $3 Million

The consequences are not hypothetical. In LeBoeuf v. Entergy Corporation, No. 24-30583 (5th Cir. May 1, 2025), a retired Entergy employee named his four children as beneficiaries on his 401(k) after his first wife died. He remarried in 2014 but never updated the beneficiary designation and his new wife never signed a spousal waiver. When he died in 2021, the plan held $3 million. The administrator was required by ERISA to pay it all to the surviving spouse. The children sued, arguing the plan had misled their father by continuing to list them as beneficiaries on quarterly statements. The Fifth Circuit disagreed: the plan documents had plainly explained the remarriage rule, and the court held that the plan administrator had no duty to remind a participant to update his paperwork. Every dollar went to the new wife.

The lesson is blunt. The quarterly statement showing your children’s names is not a guarantee. The plan document is.

The Statute That Makes It Stick

The rule lives in the Employee Retirement Income Security Act, specifically the Retirement Equity Act amendments codified at 29 U.S.C. §1055 and mirrored in the tax code at 26 U.S.C. §417. The Supreme Court reinforced this framework in two landmark decisions. In Boggs v. Boggs (1997), the Court held that ERISA preempts state community property law, meaning a non-participating spouse cannot use state law to override the federal plan structure. Then in Kennedy v. Plan Administrator for DuPont Savings (2009), the Court established the plan-documents rule: the beneficiary designation form on file with the administrator controls, full stop, even over a divorce decree. Together, the cases make clear that ERISA rights can only be waived by the spouse in writing, after marriage, on the plan’s own forms.

Who This Actually Covers

The spousal-consent rule applies to ERISA-covered plans: 401(k)s, 403(b)s, most pensions, profit-sharing plans, and employer-sponsored plans that provide a qualified joint and survivor annuity. It does not apply to IRAs. IRAs follow state law, and in most states you can name anyone you want as beneficiary without your spouse’s signature. The exception is the nine community-property states, where contributions made during marriage may be treated as joint property: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Check local rules carefully if you live in any of those states.

That IRA distinction matters more than most people realize. A lot of remarrying retirees roll their 401(k) into an IRA without realizing they just changed the rulebook on who controls the beneficiary.

How to Actually Lock It In

1. Before you remarry, list every retirement account you own and note whether it is ERISA-covered or an IRA.
2. After the wedding, request the plan’s spousal consent or waiver form from each 401(k) or pension administrator. Do not use a generic form downloaded from the internet.
3. Have your new spouse sign the waiver in front of a notary or a plan representative. The signature must be dated after the marriage to be valid.
4. File the signed waiver with the plan and re-file your beneficiary designation naming your children (or a trust for their benefit).
5. For IRAs, update the beneficiary form directly. Consider naming a properly drafted trust as beneficiary if you want to control the timing and amount your kids receive.
6. Coordinate with your estate attorney so the beneficiary designations, trust, and will all point in the same direction. Beneficiary forms beat wills every time.

The Trap That Voids Everything

The biggest gotcha: a prenup signed before the wedding is not a valid ERISA waiver. Courts have repeatedly ruled that a fiancee cannot waive spousal rights she does not yet legally hold. Only a post-marriage signature counts. Skip that step and every dollar in your 401(k) can be redirected to your new spouse regardless of what the prenup, the will, or your kids’ prior beneficiary designation says.

Two other traps are worth knowing. First, rolling a 401(k) into an IRA before the waiver is signed removes the ERISA spousal-consent requirement, which can help or hurt depending on your goal. In community-property states, that move can still create complications. Second, on the income side, a 2.8% 2026 Social Security COLA and a 1.71% national average 12-month CD rate mean a new spouse may lean harder on your investment accounts than you expect. Factor that reality into the waiver conversation early.

One form, one notary, one signature after the wedding. That is what actually keeps the money going where you promised it would go.

Editor’s note: This pass added a new section on LeBoeuf v. Entergy Corporation (5th Cir. May 1, 2025), a case in which a retiree’s four children lost a $3 million 401(k) to his new spouse because no spousal waiver was obtained after he remarried, and confirmed the 2026 Social Security COLA at 2.8% per SSA and the national average 12-month CD rate at 1.71% per FDIC data for August 2026.

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