
    Anne B. Richards, Respondent, v William Richards, Appellant.
    [648 NYS2d 589]
   —Order, Supreme Court, New York County (Lewis Friedman, J.), entered on or about May 26,1995, which, in an action for divorce, determined that plaintiff wife is not barred from equitable distribution of defendant husband’s pension and retirement plans as a result of a prenuptial agreement in which she waived any claim thereto, unanimously affirmed, without costs.

We are in accord with the view expressed by the United States District Court, Southern District of New York in Hurwitz v Sher (789 F Supp 134, 137 [citing Treasury Regulation (26 CFR) § 1.401 (a)-20], affd for other reasons 982 F2d 778, 781, n 3, cert denied 508 US 912) that, under the Employee Retirement Income Security Act (29 USC § 1055 [c] [2] [A] [i]) and the Internal Revenue Code (26 USC § 417 [a] [2] [A] [i]), only a spouse can waive spousal rights to employee plan benefits, that a fiancée is not a spouse, and that such rights, therefore, cannot be effectively waived in a prenuptial agreement.

We have considered defendant’s remaining arguments and find them to be without merit. Concur—Wallach, J. P., Nardelli, Williams and Mazzarelli, JJ.  