If your husband or wife survives you, and you have funds in a 401(k), can you disinherit him or her from your retirement account and leave the funds directly to your children – or to another beneficiary? Not without your spouse’s consent. Under a federal law called the Employee Retirement Income Security Act (ERISA), your 401(k) must go to your spouse, unless he or she has signed a written waiver of the right to inherit your retirement plan.
If you want your 401(k) plan to go to someone other than your spouse, two things will need to happen. First, of course, your husband or wife has to agree, in writing, not to inherit the plan funds when you pass away. Then, you’ll need to make sure you fill out a new beneficiary designation form, specifying which person (or people) should inherit your plan.
Keep in mind that ERISA does not apply to IRA’s – with these plans, you can name anyone you want as a beneficiary.