Marry Again at 68 and Your New Spouse Automatically Inherits Your 401(k), Not Your Kids, Unless She Signs a Notarized Waiver. An IRA Has No Such Rule, and the Will Has No Say Over Either
Federal law quietly reassigns your 401(k) the moment you say "I do" again, and the beneficiary form you filled out carefully, plus the will your attorney drafted, may both be powerless to stop it.
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A 68-year-old retired engineer in Ohio, widowed for a decade, remarries. He has a $700,000 401(k) from his old employer and a $300,000 rollover IRA. His will, signed after his first wife died, splits everything equally between his two adult children. Both beneficiary forms name the children too.
He dies 19 months after the wedding. The children take the will to the 401(k) plan administrator and find that the plan gives it no weight. The plan pays the full $700,000 to his widow. The children split the $300,000 IRA, $150,000 each.
Every document was filled out right. His new wife just never signed a waiver, and from the day they married, federal law made her the 401(k) beneficiary.
Federal Law Hands the 401(k) to the New Spouse
A 401(k) falls under the survivor-benefit rules in Internal Revenue Code section 401(a)(11). Most 401(k)s avoid the mandatory annuity rules only if the plan pays the participant’s vested balance “in full, on the death of the participant, to the participant’s surviving spouse”. Someone else inherits only if there is no surviving spouse or the spouse consents in the way section 417(a)(2) requires.
Under section 417(a)(2)(A), that consent has to be in writing, has to acknowledge what it does, and has to be witnessed by a plan representative or a notary public. IRS Publication 560 states the same rule: a spouse’s consent “must be witnessed by a plan representative or notary public”.
Timing matters. A waiver in a prenuptial agreement fails because the person signing it was not yet a spouse. The consent has to be signed after the wedding while she is the spouse. A plan can choose to deny spousal rights in marriages shorter than one year. That is optional for the plan, and at 19 months this marriage was past the cutoff anyway.
IRAs Follow the Form, and Both Accounts Bypass the Will
Section 408 defines an IRA as a trust for “the exclusive benefit of an individual or his beneficiaries” and contains no spousal-consent requirement. Whoever is named on the custodian’s beneficiary form inherits. In community-property states, state law can give a spouse a claim on IRA money made during the marriage. Ohio is a common-law state, so the form controls.
Both accounts pass by contract to the named or default beneficiary, outside the will. In Egelhoff v. Egelhoff, the U.S. Supreme Court held that ERISA preempted a Washington statute that would have redirected employer-plan benefits, and the named beneficiary kept the money (2001).
A $1 Million Estate Splits Very Differently
| Account | Value | As signed | With waiver |
|---|---|---|---|
| 401(k) | $700,000 | Widow | Children |
| IRA | $300,000 | Children | Children |
| Each child’s share | $150,000 | $500,000 |
The widow’s $700,000 can leave his family line for good. Section 402(c)(9) lets a surviving spouse roll over a plan distribution “in the same manner as if the spouse were the employee”. Once the money is in her own IRA, she names her own beneficiaries. If she has children from an earlier marriage, they are next in line.
The children’s $300,000 also comes with a deadline. As non-spouse heirs, they fall under the beneficiary rules the SECURE Act added to section 401(a)(9), which generally require the inherited account to be emptied within 10 years.
One Signature Would Have Sent $500,000 to Each Child
He had two clean ways out. The first: roll the 401(k) into his IRA before the wedding. Before the marriage there is no spouse whose consent is needed, and once the money is in an IRA, the beneficiary form alone decides. Each child gets $500,000.
The second: keep the 401(k) and have his new wife sign the plan’s spousal consent form after the wedding, in front of a notary or plan representative. The result is the same, with $500,000 to each child. If he wants to provide for her, life insurance or a specific bequest in the will does that without touching the retirement accounts.
Steps That Lock In the Kids’ Share
- Call the 401(k) plan administrator and ask for the spousal consent form and the plan’s rule on marriages shorter than one year.
- Decide before the ceremony whether to roll an old employer’s 401(k) into an IRA, where federal law requires no spousal signature.
- Sign the prenup, then have your spouse sign the plan’s consent form after the wedding, witnessed by a notary or plan representative. Keep a copy, and make sure the plan has one on file.
- Pull every 401(k) and IRA beneficiary form and compare each one to your will. In any conflict, the form wins.
- In a community-property state, have legal counsel review whether your IRA needs spousal consent as well.
Beneficiary forms, ownership, and the gap between what the will says and what the plan pays are the same paperwork that decides whether money goes to family or gets tied up elsewhere. We put the full checklist in a free estate guide here.
One Missing Form Moves $700,000
Households ages 55 to 69 hold 49.5% of all defined contribution retirement wealth held by U.S. households. For remarried savers in that group, the number to remember is $700,000: the 401(k) that went to a spouse of 19 months because one notarized form was never signed.
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Vilma Rios is a tax professional and tax content contributor with more than 15 years of experience in tax and accounting. She specializes in federal tax research, tax education, and translating complex tax rules into clear, practical information for individuals, families, and small-business owners.
Vilma is a Content Tax Contributor II with the National Association of Tax Professionals (NATP), where she contributes to tax education and professional content. She has also presented tax information through webinars, including Spanish-language tax education, and has appeared on Telemundo 47 discussing tax topics and helping viewers understand important tax-filing requirements.
Her experience also includes tax and accounting work, tax research, IRS-related matters, and public tax education. While in college, Vilma volunteered in an IRS-sponsored tax assistance program and was recognized for her community service by local and state officials.
Known as “Your Tax Geek,” Vilma is passionate about making taxes easier to understand and helping people navigate an increasingly complex tax system.
