Most defined benefit retirement plans are governed by rules set forth in the Employee Retirement Income Security Act of 1974, as amended. This federal statute is generally referred to as ERISA. ERISA requires defined benefit plans to provide the surviving spouse with a survivor annuity which automatically goes to the surviving spouse unless they specifically waive that right. Defined benefit plans are those where you receive benefits from the employer based upon a formula that results in payments on a monthly basis.

This federal mandate may not be consistent with your wishes if you remarry. A prenuptial agreement may provide that the right to a survivor annuity in a defined benefit retirement plan is waived. Because of the way that federal law is worded, the prenuptial agreement must direct that the waiver be signed during, not before, the marriage.