Does the beneficiary on an IRA override a will?

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Does the beneficiary on an IRA override a will?

Ex-husband’s will leaves everything to children of 1st marraige. His IRA already divided in divorce settlement designates wife of 2nd divorced spouse as beneficiary. Does that override the will?

Asked on May 10, 2009 under Estate Planning, West Virginia

Answers:

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

The IRA beneficiary a person designates would inherit, anything in the Will to the contrary, unless the person has been ordered to designate another person as his IRA beneficiary by a court order. (I am not a WV lawyer and am not going to address the possible rights of a surviving spouse to elect a share as that's not what you seem to be asking.)

In the case of a 401(k) the surviving spouse is the automatic beneficiary by federal law unless s/he has waived the right to be beneficiary by notarized statement filed with the plan's administrator.

B. B., Member, New Jersey Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

If the IRA is properly set up, and the beneficiary designation was set by a proper order after the divorce, then the IRA is not covered by the will.

These orders are a very technical matter, under the federal statute known as ERISA that regulates employee benefits and retirement accounts.  Nobody can give you sound advice, on this, without looking at the documents.  You should talk to a lawyer about this, if you have serious questions, and one place you can find one is our website, http://attorneypages.com


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