Wills, Trusts & Estates Prof Blog: Even if an individual creates a well drafted will, he or she may unintentionally disinherit intended beneficiaries from large portions of his or her estate by failing to take proper steps regarding non-probate assets.
One such asset is a 401(k) plan. A surviving spouse is automatically entitled to the entire account, regardless of what a will states. If an individual wants the account to pass to someone other than his or her spouse, the spouse must file a written statement waiving his or her rights to the account. Additionally, a prenuptial agreement will not resolve this issue because, until a person is actually married, he or she cannot give up his or her spousal rights to a 401(k).