QUESTION
Is he able to cash out the 401k without my consent?
Asked on Oct 17th, 2012 on Estate Planning - Michigan
More details to this question:
The company holding the 401k says that because he terminated his previous employment, he can cash out the 401k and transfer it into his name and change beneficiary.
8 ANSWERS
Collaborative Divorce Attorney serving Spokane, WA
at
Burke Law Group, PLLC
Update Your Profile
If you and your husband resided in Washington State, you would have certain legal rights that may not be present in other states. Washington is a community property state, and all assets earned or acquired during marriage, including retirement plan values, are presumptively community property thus owned equally by both spouses. Because of this, virtually all financial institutions and brokerages know that they must get a signed release from the spouse before distributing or transferring funds from one retirement or investment account into another account. By the wording of your question, I am guessing that you might be living in a state that does not base it's property ownership laws on community property law principles. This information is for general public information and is not to be considered legal advice nor does it establish any confidential attorney/client privilege.
Answered on Oct 18th, 2012 at 7:29 PM
Administrative Law Attorney serving Sherwood, OR
Partner at
Employment Law Professionals Northwest LLC
3 Awards
I am not clear on who is cashing out a 401(k) and what their relationship is to you, so it is impossible to answer your question. If it is a spouse, generally there is a requirement of notification to the spouse and an authorization for the change. If it is your spouse there are a number of regulations governing disposition of retirement accounts and plan selection. You should consult an attorney for an accurate answer based on your specific facts.
Answered on Oct 18th, 2012 at 7:28 PM
Business Law Attorney serving Livonia, MI
at
Gerald A. Bagazinski
Update Your Profile
No he cannot. The money probably will remain in the 401(k) plan until you consent.
Answered on Oct 18th, 2012 at 7:28 PM
Elder Law Attorney serving Savannah, GA
at
Elder Law Office of Mark Schaefer PC
Update Your Profile
I assume that "he" refers to your husband. The answer in that case is yes, he can roll his former employer's 401k into an IRA in his name. Once it is in the IRA, he can designate anyone as beneficiary. No spousal consent is required by most IRA custodians.
Answered on Oct 18th, 2012 at 7:28 PM
Divorce for Men Attorney serving Nutley, NJ
at
The Micklin Law Group, LLC
Update Your Profile
No. During the pendency of a divorce, both parties are prohibited from transferring, liquidating, or otherwise dissipating marital assets, including but not limited to life insurance policies and retirement accounts. His 401(k) constitutes a marital asset which must be maintained. You should file an immediate motion to freeze all assets, including but not limited to the 401(k).
Answered on Oct 18th, 2012 at 7:27 PM
Business Planning Attorney serving Livonia, MI
at
Frederick & Frederick Attorneys at Law
Update Your Profile
There is not enough information given to answer your questions. I assume this is your husband or ex-husband we are talking about? The answer may well depend on whether the account is governed by ERISA or not. ERISA is a federal law that protects the spouse in these kinds of situations. ERISA requires a spouse to consent to having another beneficiary named.
Answered on Oct 18th, 2012 at 7:27 PM
Appellate Attorney serving Grosse Pointe Farms, MI
at
Musilli Brennan Associates, PLLC
Update Your Profile
They are correct, it is his account until a court, in a divorce or separate maintenance action, takes jurisdiction over it.
Answered on Oct 18th, 2012 at 7:26 PM
Leonard A. Kaanta
Yes.
Answered on Oct 18th, 2012 at 7:25 PM