What happens if a prenuptial agreement was executed but, after the marriage, the spouse failed to consent in writing to the agreement's naming of the participant’s child as beneficiary?
Rev. 07/09/09; E-mail Alert 2009-10

Since there was never an actual spousal consent as required under ERISA, the spouse would be considered the primary beneficiary and unless that surviving spouse properly disclaimed being the beneficiary, he or she would be entitled to the deceased participant assets. 

Keep in mind that under a qualified plan, spousal consent is required by ERISA in order for a participant to name someone other than the spouse as a beneficiary. Any agreement made prior to marriage does not qualify as spousal consent because there is not a spousal relationship at the time of the consent. Only after the marriage can proper spousal consent be given.

IRAs are not qualified plans and as such are not subject to the spousal consent rules. However, community property states have similar rules.

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Qualified Plan Beneficiary Rules and Issues.
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