3890 / When may survivor benefits required under a qualified plan be waived?
A qualified plan that is subject to the automatic survivor benefit rules generally must provide that participants may elect (or revoke an election) to waive the qualified joint and survivor annuity (“QJSA”) or the qualified preretirement survivor annuity (“QPSA”) forms of benefit ( Q 3882) at any time during the applicable election period.1 The participant may elect the qualified optional survivor annuity (“QOSA”) at any time during the applicable election period.2
The plan also must provide that such an election will not be effective unless (1) the spouse of the participant, if any, consents in writing to the election, (2) the election designates a beneficiary or a form of benefits that may not be changed without spousal consent (unless the consent expressly permits future designations by the participant without further spousal consent), and (3) the consent acknowledges the effect of the election and is witnessed by a plan representative or notary public.3 See Q 3886, which explains the use of the term spouse to apply to same sex couples.
An election made without the consent of the spouse is effective only if it is established to the satisfaction of a plan representative that there is no spouse, that the spouse cannot be located, or that certain other specified circumstances prevent securing such consent.4 Caution should be exercised when following any of these exceptions as a missing spouse who suddenly resurfaces may be entitled to benefits that already have been fully paid to another beneficiary. Any consent by the spouse of a participant, or proof that consent cannot be obtained from the spouse, is effective only with respect to that spouse and not to any subsequent spouse except in the case of plan benefits securing a loan ( Q 3882).5