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If you have been separated for 12 years does spouse still have to sign to get 401 K

Shelby, NC |
Filed under: Employee 401k plans

My Brother has been separated for 12 years, he has been on disability and now he can get his 401k from his employer does his wife have to sign also and can she get any of it?

Attorney Answers 2


It depends on the polices of the particular 401k program. Even if they have been separated...they are still legally married.

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If they are still married then yes, she has a property interest in his 401k assets (unless a prenup or postnup says otherwise). If the plan requires her to sign a consent form then he needs to produce a properly executed consent form or see if the plan has any alternate rules that he can satisfy. Plans often have alternate rules, such as where the spouse cannot be found, that may produce a distribution without the consent form. Plan administrators are often hesitant to use these alternate rules and may require your brother to take expensive steps to try to locate her (such as hiring a PI to try to track her down).

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