Most 401(k) Plans Let Spouses Drain Retirement Accounts Without Your Knowledge
A new report from the U.S. Government Accountability Office (GAO) has confirmed what many divorce attorneys already know firsthand: the vast majority of defined contribution retirement plans — including the ubiquitous 401(k) — allow a married participant to take out loans, make withdrawals, and receive distributions without their spouse ever being informed, let alone asked.
The report, GAO-26-107536, published in March 2026, was requested by members of the Senate Committee on Health, Education, Labor, and Pensions, and examined three core questions: when spousal consent is actually required, what happens to spouses when it isn’t obtained, and what the trade-offs of expanding consent requirements would be.
The Legal Landscape Is Fragmented
Federal law — specifically the Retirement Equity Act of 1984 (REA), which amended ERISA — does require spousal consent to remove funds in certain plan types. But those plan types represent a sliver of the retirement landscape.
Money purchase plans and target benefit plans are subject to REA’s spousal consent rules, meaning participants must obtain documented written spousal consent before making any active fund withdrawal. Together, these two plan types accounted for less than one percent of all private-sector defined contribution plans in 2022, per Department of Labor data. A 401(k) plan — the dominant vehicle with nearly 686,000 plans and $6.8 trillion in assets — carries no such requirement under federal law.
The Thrift Savings Plan (TSP), the federal government’s defined contribution plan serving 7.2 million participants with $963 billion in assets as of December 2024, is a notable exception. FERS participants and uniformed service members must obtain written spousal consent before removing funds. But even the TSP has a gap: spouses can be changed as beneficiaries without any notice or consent at all.
How Often Does Fund Removal Actually Happen?
The GAO analyzed data from the 2022 Survey of Consumer Finances, the most recent available, which captured household financial behavior in 2021. Among married households where at least one spouse held a 401(k) or similar account, roughly 11 percent removed funds that year. The typical amount removed was about $8,500, representing around 7 percent of total household retirement savings.
Most withdrawals were modest — 42 percent of households that removed funds took out $5,000 or less. But about 14 percent took more than a quarter of the household’s total retirement balance, a figure that represents a potentially devastating hit depending on the household’s overall financial picture.
What the Report Does Not — and Cannot — Measure
The survey data cannot capture whether the non-participant spouse knew about or consented to the withdrawal. There is no national data on how often funds are removed without a spouse’s knowledge. Stakeholders interviewed by GAO — drawn from retirement industry organizations, retiree advocacy groups, law firms specializing in family and retirement law, and affected spouses — generally characterized unilateral, covert fund removal as uncommon. But they also described cases involving losses of half a million dollars or more.
Why This Matters
The stakes are asymmetric. For households where retirement savings represent the largest financial asset outside a home — and for spouses who have fewer or no accounts of their own — the unauthorized removal of funds can have irreversible consequences. Once withdrawn and spent, the money is gone, along with decades of compounded growth.
The GAO report makes no legislative recommendations but lays out a detailed policy menu: expanded mandatory spousal consent, spousal notification systems, threshold-based exemptions, and modernized consent documentation (electronic signatures, remote notarization). Each option carries trade-offs the report examines in detail.
This post is based on GAO Report GAO-26-107536, “Retirement Security: Most Defined Contribution Plans Do Not Require Spousal Consent to Remove Funds and Doing So Would Involve Trade-offs,” published March 2026.