Money Talks | March 12, 2015

By Melissa Myers and Michael J. Tucker, March 12, 2015.

Melissa Myers: I was in a jewelry store the other day, and it was swarming with happy couples looking at engagement rings.

Michael J. Tucker: Were there many gay couples?

Myers: I didn’t see any in this particular store, but based on the number of calls we are receiving from same-sex couples asking questions about the legal and financial aspects of marriage, I know many are out there.

Tucker: Yes, and ring shopping is a fun part of the process. It’s almost as fun as other details such as making sure your beneficiary designations are updated once you wed.

Myers: That is a fun and exciting detail, I agree. Oddly, it’s often overlooked or forgotten until much later, or sometimes never addressed at all.

Tucker: Many couples that have recently tied the knot were already together for many years and had added their partner as their beneficiary on their IRAs, employer retirement accounts and insurance policies years ago.

Myers: Yes, and so they may feel they are “all set” and nothing further needs to be done.

Tucker: It can be important to go back to the same companies who are custodians of these accounts and inform them that your beneficiary is now your spouse.

Myers: Certain rights come with being a spouse beneficiary as opposed to a non-spouse beneficiary.

Tucker: That goes double for qualified employer plans such as many pensions, 401(k)s, 457s and 403(b)s. The Retirement Equity Act of 1984 (or “REA” for short) states that, “No longer will one member of a married couple be able to sign away survivor benefits for the other.”

Myers: Yes. For 30 years, the law has been that “a spouse’s written consent now will be required on any decision not to provide survivors’ protection.”

Tucker: Sometimes the spouse’s rights under employer-sponsored retirement plans are referred to as REA rights.

Myers: Importantly, the guidelines around spousal consent can vary by retirement account – a different set of rules applies to IRAs, for example – and so investors should familiarize themselves with the specific requirements for their account.

Tucker: In general, if the owner of the account makes a change to the beneficiary to someone other than their spouse, the spouse must consent in writing. The spouse must be given the opportunity to agree to the designation of a non-spouse beneficiary and must sign a waiver, agreeing to the change.

Myers: So, if the owner of the account wants to change the beneficiary to a parent, sibling, child or charitable organization, for example, their spouse must be notified and typically sign a form indicating that they are aware of and agree to the change.

Tucker: Spouses have REA rights even in each other’s retirement accounts that were accumulated prior to the marriage. And so if you get married and your existing 401(k) or other employer-sponsored retirement plan account is designated to a parent, a child, or other non-spouse beneficiary, then at death the plan administrator will pay the account to the spouse anyway.

Myers:  This rule may be a surprise to some couples entering into same-sex marriages.

Tucker: It’s perhaps counterintuitive that the law prevents married persons from leaving their retirement accounts to whomever they wish. While it’s possible for spouses to waive their REA rights, the process of doing so is rather cumbersome.

Myers: Another protection in the case of defined benefit plans, which we often call pensions, is that a married person who is about to start receiving the pension must get spousal permission to select a payment option that will not give the spouse at least half of those benefits for life if the pensioner dies first.

Tucker: Importantly, REA rights do not extend to Individual Retirement Accounts, or IRAs. In Arizona and other community property states, IRA custodians may require spousal consent to the designation of a non-spouse beneficiary – not because of REA, but because of Arizona community property law.

Myers: And so, updating the beneficiary status on IRA accounts from non-spouse to spouse, even if it is the same person, is a good idea.

Tucker: Right. Spouses who inherit an IRA have a wider range of distribution options than non-spouses. The options may provide for a more tax-efficient way of utilizing the asset. This is a topic for another column. Readers are encouraged to update their IRA beneficiary designations as well if they marry.

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