Is a Spouse Entitled to Equitable Distribution of Retirement Benefits After Antenuptial Agreement Wavering Interest In Each Others Property ?

In Moor-Jankowski v. Moor-Jankowski (222 AD2d 422), plaintiff sought equitable distribution of defendant's retirement benefits even though the parties had entered into an antenuptial agreement wherein each waived any interest he or she might acquire in the other's property by reason of the marriage. The Second Department affirmed Supreme Court's dismissal of plaintiff's claim to the retirement benefits, holding that plaintiff waived any interest in the pension by the antenuptial agreement and that ERISA did not prohibit such a waiver. In Richards v. Richards (232 AD2d 303) the First Department affirmed Supreme Court's holding that plaintiff was not barred from equitable distribution of defendant's pension by a prenuptial agreement in which she waived any right thereto. Citing Hurwitz v. Sher (789 F Supp 134), the Court held that under the Employee Retirement Income Security Act of 1974 (ERISA), "only a spouse can waive spousal rights to employee plan benefits" ( Richards v. Richards, supra, at 303) and that such rights cannot be waived in a prenuptial agreement. The Court in Richards v. Richards (supra) failed to perceive that "spousal rights" under ERISA are limited to survivor benefits, and the statutory restrictions upon the waiver of such rights are likewise limited to survivor benefits. The better view, as taken by the Court in Moor-Jankowski v. Moor-Jankowski (222 AD2d 422, supra), is that ERISA's restriction on the waiver of survivor benefits does not apply to the waiver of an interest in a spouse's pension as that interest is recognized in Majauskas v. Majauskas (supra). In In re Rahn (914 P2d 463, 468 [Colo App 1995]), where the facts are similar to those in the instant case, the court said "[w]hile we recognize that a waiver of spousal death benefits in a prenuptial agreement is not effective when the spouse later dies while the parties are still married, ERISA does not, in our view, preempt or preclude the recognition, implementation, or enforcement of an otherwise valid prenuptial agreement with regard to, as here, a dissolution of marriage proceeding." It is the conclusion of this court that plaintiff is entitled to judgment as a matter of law determining that defendant waived his interest in plaintiff's pension by a valid prenuptial agreement and that such pension is not subject to equitable distribution (see, Alvarez v. Prospect Hosp., 68 NY2d 320; Zuckerman v. City of New York, 49 NY2d 557). Defendant's application for an award of temporary maintenance must also be denied. Paragraph three of the agreement provides that "both parties give up the right to temporary or permanent alimony or maintenance in the event of a separation or divorce." It is undisputed that the parties are separated, and defendant does not claim that he is about to become a public charge. Defendant's contractual waiver of his right to temporary maintenance is valid and enforceable (see, Valente v. Valente, 269 AD2d 389; Rubin v. Rubin, 262 AD2d 390; Clanton v. Clanton, 189 AD2d 849; Peerce v. Peerce, 88 AD2d 832).