Retirement accounts carry more legal weight than most other assets. In a Florida divorce, the rules for dividing retirement funds—especially employer-sponsored plans—are not always the same as those for bank accounts, real estate, or investments. This becomes especially complicated when you’re drafting a prenuptial agreement and want to control what happens to those accounts long before divorce is even on the table.
Retirement accounts may be subject to both state and federal law. And one of those federal laws—ERISA—limits what a prenuptial agreement can and cannot do. ERISA governs most workplace retirement plans. It sets the rules for spousal rights, survivor benefits, and how those accounts are divided in divorce or after death. If a Florida prenup waives rights to a retirement account but violates ERISA, that waiver could be meaningless. That puts the client—and the plan administrator—in a difficult position.
A Tampa prenup lawyer who understands both Florida law and federal retirement law can help couples avoid these pitfalls. With the right language, you can address retirement accounts in your prenuptial agreement, protect the spouse who earned them, and make sure the agreement holds up in court—and with the plan itself.
This article walks through how to handle retirement accounts in a Florida prenup without violating ERISA. We will cover plan types, waivers, QDROs, spousal rights, survivor benefits, tax concerns, and what language is enforceable.
Why Retirement Accounts Require Special Attention
Most assets in a marriage are governed by Florida law. Real estate, vehicles, investment accounts, and business interests are divided under the state’s equitable distribution rules. But most retirement accounts are governed by federal law. ERISA—the Employee Retirement Income Security Act—controls employer-sponsored retirement plans, including:
- 401(k) plans
- 403(b) plans
- Defined benefit pensions
- Some profit-sharing plans
- Certain group annuity contracts
ERISA preempts state law. That means even if your Florida prenup says a spouse waives rights to a 401(k), ERISA may still give that spouse rights unless certain conditions are met.
A Tampa prenup lawyer can navigate this intersection and make sure the contract respects both legal systems.
The Difference Between ERISA and Non-ERISA Plans
It’s important to know which accounts are subject to ERISA and which are not.
ERISA plans include:
- Employer-sponsored 401(k)s
- Traditional defined benefit pensions
- 403(b) plans through nonprofits or public schools
- Federal Thrift Savings Plans
- Certain union retirement funds
Non-ERISA plans include:
- IRAs
- Roth IRAs
- Solo 401(k)s for self-employed individuals with no employees
- SEP IRAs and SIMPLE IRAs in many cases
Your Florida prenup can usually waive rights to non-ERISA plans without running into problems. But for ERISA-covered plans, you need to follow specific steps—especially if the goal is to waive spousal rights after marriage.
A Tampa prenup lawyer will help identify each account, confirm how it’s governed, and draft terms accordingly.
What ERISA Protects That a Florida Prenup Cannot Override
ERISA provides two critical protections for spouses:
1. Spousal Consent to Survivor Benefits
For many plans, ERISA requires that if a participant dies before retirement, their surviving spouse receives a default survivor benefit unless the spouse waived it in writing. This applies to defined benefit pensions and certain annuity-based plans.
2. Spousal Rights to Plan Benefits in Divorce
ERISA permits a plan to divide benefits between spouses after divorce through a Qualified Domestic Relations Order (QDRO). Without a QDRO, the plan will not pay benefits to anyone except the plan participant.
Even if your prenup waives the right to a portion of a retirement account, that waiver alone is not a QDRO. That means you must still go to court and enter a QDRO that matches the terms of the prenup—or else the plan administrator cannot legally divide the benefits.
A Tampa prenup lawyer will make sure the agreement includes language that supports future entry of a QDRO, even when the goal is to waive all rights.
How to Structure Retirement Waivers in a Florida Prenup
To handle retirement accounts correctly in a prenup, your agreement should:
- Identify all existing retirement accounts
- Specify whether each account is separate or marital
- Waive or retain rights to contributions made during the marriage
- Address both ownership and survivorship interests
- Include language stating that both parties understand ERISA may require further steps
- Authorize the court to enter a QDRO that reflects the terms of the prenup if needed
Example clause:
“Each party hereby waives, relinquishes, and releases any and all rights, claims, or interests in the other party’s retirement plans, including but not limited to 401(k), 403(b), pension, and defined benefit plans, whether existing or later acquired, except as may otherwise be required by applicable federal law. The parties agree to execute any additional documents, including Qualified Domestic Relations Orders, necessary to effectuate the terms of this waiver.”
This clause anticipates the need for future cooperation. A Tampa prenup lawyer will customize this language for each client’s retirement portfolio.
Survivor Benefits After Death
ERISA requires spousal consent for a plan participant to name someone else as beneficiary of certain retirement plans. This requirement applies only after the marriage. That means a waiver signed in a prenup—before marriage—is not enough.
The spouse must wait until after the marriage to sign a separate waiver of survivor benefits. Most plan administrators will provide a spousal consent form. It must be signed after marriage, often in the presence of a notary or plan representative.
So your Florida prenup can say:
“Each party agrees to waive any survivor benefits provided by the other party’s qualified retirement plans and agrees to execute the required post-marriage spousal consent forms to give effect to this waiver.”
But until that consent form is signed after the wedding, ERISA still provides default survivor benefits.
A Tampa prenup lawyer can include this clause and recommend timing for signing post-marriage waivers.
Can You Waive a QDRO in a Prenup?
No. A prenuptial agreement cannot function as a QDRO. ERISA requires a court-approved domestic relations order for the plan to divide benefits. Your prenup can state that no QDRO will be requested. But if a party later changes their mind, the court may still enter one unless the prenup waiver is upheld.
What you can do:
- Waive the right to request a QDRO
- Agree not to seek division of retirement benefits
- Require reimbursement or damages if a QDRO is later filed against the agreement
But your prenup cannot prevent the court from entering a QDRO unless the waiver is enforceable and the judge honors it.
A Tampa prenup lawyer will pair strong waiver language with future enforcement strategies to discourage bad faith litigation.
What About Retirement Contributions Made During the Marriage?
Under Florida law, contributions made during the marriage to a retirement plan—whether ERISA or not—are presumed marital unless the prenup says otherwise.
If you want to keep future contributions separate, your agreement should say:
“All retirement plan contributions made during the marriage, including but not limited to employer or employee contributions, shall be the separate property of the contributing spouse and shall not be subject to equitable distribution.”
If you want to treat only premarital balances as separate, but share future contributions, your prenup can reflect that too.
A Tampa prenup lawyer will ensure the classification language matches your expectations and avoids unintentional marital exposure.
Don’t Forget the Tax Impact
When retirement accounts are divided in divorce, there are tax consequences. Normally, a QDRO allows tax-free transfer of qualified funds from one spouse to the other. If funds are withdrawn instead of rolled over, the receiving spouse pays the tax—not the plan participant.
A Florida prenup can clarify:
- Whether a rollover will be required
- Who pays taxes on any withdrawal
- Whether early withdrawal penalties will be reimbursed
- Whether a cash-out is permitted or required
Example clause:
“Any transfer of retirement funds pursuant to this agreement shall be accomplished through a Qualified Domestic Relations Order. The receiving spouse shall be solely responsible for any taxes or penalties resulting from withdrawal or early distribution.”
A Tampa prenup lawyer can tailor these clauses to minimize tax exposure and prevent conflict at the time of division.
What If One Party Has a Pension?
Pensions are governed by ERISA if earned through private employment. Pensions earned through federal, state, or military service are not governed by ERISA—but they have their own rules.
In a Florida prenup, pension clauses should:
- State whether the pension is separate or marital
- Waive or preserve rights to future benefits
- Address survivorship elections
- Reference any applicable military or federal regulations
- Agree to sign required forms after marriage
If your spouse earns a pension through Florida Retirement System, military service, or federal employment, your prenup must align with the rules of that plan—not just ERISA.
A Tampa prenup lawyer will work with plan documents to ensure that waivers and elections are drafted correctly.
Disclosures Still Matter
Even if you waive retirement rights in a prenup, the agreement can still be challenged if financial disclosure was not adequate. Retirement accounts must be disclosed fully. That means:
- Listing all plan types and names
- Including current balances
- Describing vesting schedules
- Naming beneficiaries
- Explaining whether future contributions are expected
You cannot waive something you don’t know about. Florida courts require full and fair disclosure before an agreement is enforceable. ERISA adds a layer of complexity—but not a shield from scrutiny.
A Tampa prenup lawyer will prepare or review a financial disclosure schedule that includes retirement assets in plain terms.
How to Approach a Prenup When One or Both Spouses Have Retirement Accounts
Step 1: Identify each account
Start with:
- Current employer plans
- Former employer plans
- IRAs, Roth IRAs
- Pensions
- Military or government service retirement
- Deferred compensation
- Annuities
Step 2: Determine plan type
Decide which are ERISA-covered. That tells you what kind of waiver or consent will be needed.
Step 3: Clarify intent
Will these accounts be shared? Kept separate? Will survivor benefits be waived? Will future contributions be marital or separate?
Step 4: Draft clear waivers
Use neutral, non-punitive language that explains exactly what each party is giving up.
Step 5: Plan for post-marriage consents
Flag any survivor waivers that must be signed after the wedding.
Step 6: Include enforcement tools
Make sure your agreement allows for court orders, QDROs, or indemnity provisions to enforce the waiver.
A Tampa prenup lawyer will walk both parties through this process in language that is clear, consistent, and enforceable.
Common Mistakes to Avoid
- Treating the prenup as a QDRO
- Waiving survivor rights before marriage and never following up
- Forgetting to list vested and unvested retirement assets
- Assuming plan administrators will honor the prenup without proper documentation
- Failing to understand the tax consequences of division or withdrawal
- Using vague language about “pensions” or “retirement” without defining terms
A Tampa prenup lawyer will help identify these risks early and draft language that avoids them completely.
FAQ
Can a Florida prenup waive rights to a 401(k)?
Yes, but additional steps may be required to comply with ERISA. The waiver is not enforceable by the plan unless post-marriage spousal consent is also provided.
Is a prenup enough to keep my retirement account separate?
Not always. You also need to avoid using marital funds for contributions unless your agreement clearly addresses that.
Can we waive QDRO rights in the prenup?
You can waive the right to seek a QDRO, but the court may still enter one if the prenup is not enforceable.
What if my spouse changes the beneficiary on their retirement plan after marriage?
Many plans require spousal consent to name a non-spouse beneficiary. That waiver must be signed after marriage.
Does ERISA apply to IRAs?
No. IRAs are governed by state and federal tax law but not ERISA. They can be fully addressed in a Florida prenup.
Can we include retirement accounts in property division without using a QDRO?
For ERISA-covered plans, a QDRO is required to divide the account. The prenup can authorize the court to enter one.
Should we include retirement account values in the prenup?
Yes. Full disclosure is required. That includes current balances and plan names.
Can a prenup prevent my spouse from getting any part of my pension?
Yes, if the waiver is properly drafted and all required forms are signed after marriage.
Do we need a lawyer to write this?
Yes. A Tampa prenup lawyer will understand the interaction between Florida law and federal retirement law.
What happens if the prenup is silent on retirement?
Florida law will treat contributions made during the marriage as marital property, subject to equitable distribution.
The McKinney Law Group: Thoughtful Prenups for Tampa Couples Who Value Clarity
From blended families to unequal finances, every couple brings something different into a marriage. We help Tampa clients create prenups that honor those differences and protect what matters most.
Call 813-428-3400 or email [email protected] to begin.