One of our employees who was a participant in our 401(k) plan recently passed away. He never submitted a beneficiary designation form; however, since he was married, we understand that his spouse is automatically his beneficiary. According to his spouse, there are enough other assets such that she does not want to accept the death benefit from the 401(k) plan and prefers, instead, that the benefit pass to her brother-in-law (her deceased husband’s brother).
Is it possible for the spouse to disclaim the death benefit from our 401(k) plan? If so, can she direct where the benefit is paid instead?
The short answers are “maybe” and “no." But it wouldn’t make for a very interesting Question of the Week if that’s where the answers ended.
There are differences of opinion on whether or not the beneficiary of a 401(k) participant can disclaim a benefit after the participant has already passed. Let’s take a quick look at some of the guidance.
The Tax Code allows a taxpayer to make a “qualified disclaimer with respect to any interest in property” as long as:
- the disclaimer is made in writing;
- the transferor receives the disclaimer no later than nine months after the event that triggers the interest;
- the intended recipient has not yet accepted the interest or any of its benefits; and
- the person making the disclaimer does not provide any direction on the payment of the interest.
There are two additional pieces of IRS guidance, from 1991 and 2005, that support the conclusion that it is possible for a 401(k) beneficiary to waive benefits.
So why is the answer “maybe?" Well, because a federal court decided in 2005 that when it comes to qualified retirement plans, e.g., 401(k) plans, a disclaimer by a participant’s beneficiary is not valid. The reason is that there is a rule that prohibits assigning plan benefits to another party. The intent is to preserve plan benefits for retirement and not use them as collateral for debts or something like that. The court said that a beneficiary disclaimer is nothing more than an indirect assignment of benefits that violates this rule. For what it’s worth, another federal court in a different part of the country reached a different conclusion that same year.
So, there you have it. The IRS says it is possible for a beneficiary to waive a death benefit, and at least one federal court says it is not possible. The answer is a definite maybe.
Let’s go to the second part of the question. If we assume that beneficiary disclaimers are allowed, the last bullet point above makes it clear that the beneficiary cannot have any say in where the death benefit goes. That means the plan has to look to whomever the participant named as a contingent beneficiary (if anyone) or, absent a participant election, the plan’s default designation order.
If the participant had submitted a form naming his brother-in-law as the contingent beneficiary, then the spouse’s disclaimer would cause the death benefit to go to the brother-in-law. If the participant named someone else, then the death benefit would go to that person upon the spouse’s disclaimer. However, since the question notes that the participant did not make a formal beneficiary designation, we would look to the plan document. Most plans specify that the default order absent a participant election is spouse, children, parents, and estate. Since siblings are not listed, the spouse’s disclaimer (even if valid) would not result in the brother-in-law receiving the death benefit.
Given the competing guidance, the plan sponsor’s risk from paying the wrong party, and the tax implications of everyone involved, our recommendation is to consult an attorney who specializes in this area. He or she can examine the specific facts and make the appropriate recommendation.
Of course, the best way to avoid the question altogether is to periodically encourage participants to review and update their beneficiary designations to ensure that benefits go exactly where they want.
For more information on beneficiary designations, please visit these DWC Knowledge Center resources:
- Plan Distributions 101
- Beneficiary Designations: Family Feuding About Benefits
- Is There a Specific Format or Required Content for a Beneficiary Designation Form?
- When Must Participants Get Their Spouses To Sign-off On Changing 401(k) Elections?