- Introduction
A June 2026 Delaware Court decision, Re: R—S—B— v. R–B—, upheld a prenuptial agreement’s waiver of any retirement benefits given to one spouse, over a husband’s argument that the Employee Retirement Income Security Act (ERISA) prevented the prenuptial agreement from serving as a waiver. The husband claimed that, since his wife’s retirement plan was controlled by ERISA, the prior prenuptial agreement’s waiver of her retirement assets was invalid. The court rejected his argument on the grounds of difference in scope between ERISA’s governance of survivor benefits and its treatment of retirement assets in a divorce. Under that ruling, a prenuptial agreement can effectively waive a spouse’s interest in the other spouse’s retirement assets as marital property upon divorce, however it may not substitute for a proper ERISA waiver. ERISA’s waiver requirements apply to survivor benefits, not to the division of retirement assets upon divorce. Practitioners should understand this distinction, as misunderstanding it can lead to incorrect assumptions about the enforceability of prenuptial agreements and ERISA claims.
- Facts of the Case
In October 2005, the two parties entered into a prenuptial agreement. A provision in their agreement stated that any savings, including pension and 401(k) accounts, acquired before or after the execution of the agreement would not be considered shared property. On March 23, 2026, the court determined that the prenuptial agreement was valid and enforceable. However, the husband raised a new argument. He asserted that his wife’s retirement plan should be considered shared property because ERISA prevented the prenuptial agreement’s waiver from being effective. Because the prenuptial agreement was executed before their marriage, it should not override the provisions within ERISA, so it was an insufficient effort to waive his rights to her retirement benefits.
- Legal Issues
The central legal question was whether ERISA was sufficient to override the prenuptial waiver of shared retirement benefits. Typically, ERISA requires spousal waivers of benefits to be executed during marriage, and because this waiver was before marriage, there was a question as to the legality of the initial waiver. The husband framed his argument around this claim, stating that he was not a spouse when he signed this waiver, but a fiancée.
- Court Analysis
The court’s analysis drew on a distinction between ERISA’s governance of survivor benefits and the treatment of retirement assets in a divorce proceeding. The husband framed his argument primarily on Richards v. Richards, a case in which it was found that a prenuptial agreement cannot waive ERISA rights, as only a spouse can execute an effective ERISA waiver, not a fiancé. The court found this argument to be unpersuasive, and pointed instead to Strong v. Dublin, in which the New York Appellate Division held that Richards had failed to distinguish between a waiver of survivor benefits and waiver of all other pension benefits. The court in this case held that a prenuptial agreement that expresses a direct intent to opt out of any statutory rule governing equitable distribution waives the spouse’s interest in retirement assets as marital property. Strong held that “a waiver of any interest in a pension as marital property by a valid prenuptial agreement is not prohibited by ERISA,” and that “ERISA does not preempt or preclude the recognition, implementation, or enforcement of an otherwise valid prenuptial agreement with regard to a divorce proceeding.”
Essentially, the court found that ERISA creates no substantive rights in the context of a divorce other than survivor benefits. Both spouses survived the marriage and divorce was properly entered, therefore the prospect of becoming a surviving spouse is impossible, along with any possibilities of entitlement to survivor benefits. The ERISA waiver was intended to protect a surviving spouse’s right to retirement benefits, not to govern how those benefits are divided upon divorce if both parties are still alive.
- Practical Implications
The limitations of ERISA’s reach are worth noting. ERISA’s governance over retirement benefits is, and should be noted by practitioners as, substantially different in the event of divorce as opposed to in the event of one spouse’s death. Upon divorce, the division of any retirement assets is governed by state law, and because of this, a prenuptial agreement can effectively waive a spouse’s interest in those assets. ERISA does not preempt that waiver, and cannot alter any effects that the agreement may have, in the context of divorce. It is also worth noting that if one spouse had died during marriage, the surviving spouse’s right to benefits would be governed by ERISA, and a prenuptial agreement executed before marriage would not satisfy the waiver requirements for those survivor benefits.
For practitioners, this case highlights the importance of drafting marital agreements in which retirement benefits are addressed with both scenarios in mind, and making clients aware of the varying possibilities, given death or divorce, when it comes to sharing their spouse’s retirement benefits. When drafting, practitioners should discuss with clients whether they plan on executing an ERISA waiver after marriage, and explain the scope of what such a waiver can and cannot accomplish. Practitioners should also be aware of the limitations of an overly broad reading of Richards, as several courts (including in the case examined here) have already rejected it. The weight of law ultimately holds that ERISA does not preempt prenuptial agreements containing waivers of retirement assets in a divorce.
- Conclusion
Re: R—S—B— v. R–B—confirms that ERISA does not have the power to override a prenuptial agreement’s waiver of spousal retirement benefits. While ERISA may have a governing role if one spouse dies during marriage, it does not apply, in this case, to divorcing couples. Instead, division of retirement benefits upon divorce will be governed by state law. For practitioners, this case offers a reminder of the importance of transparency when it comes to nuances in the law. Clients may be unaware of the differences in division of retirement assets upon death or upon divorce, and should be made aware so that their attorneys can properly draft a prenuptial agreement and execute an ERISA-compliant waiver of survivor benefits after marriage, if that is the couple’s intention.