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First, it depends upon who is named in the 401(k) records as the beneficiary. Second, it depends upon the intestacy and probate laws of the state in which the spouse died, regarding who (if anyone) has the right to challenge the 401(k) designation post mortem.

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18y ago

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If your common law spouse dies without a will is the surviving spouse entitled to his 401k pension plan?

There are a number of factors that can affect the ultimate payout. The employer and/or plan administrator would likely have a beneficiary designation on file for the 401(k). If the plan is an ERISA plan, it is unlikely that the interest of the surviving spouse (not the common law spouse) would be usurped. State law can come into play, too (ie, whether the wedded spouses were legally separated, etc.). I know this probably doesn't help, but the question is pretty vague and needs more details, such as was the spouse named as the beneficiary to the 401(k)? was the common-law spouse named as the beneficiary? what do the terms of the 401(k) plan indicate regarding distributions on the participant's death? is the plan governed by ERISA? were the spouses legally separated under state law (ie, did a court issue an order of separation? does state law take away the rights of a surviving spouse when there is a separation order?


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wedded


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