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BKH

Waiver of Spousal Interest

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If a single participant designates his brother as his death benefit beneficiary and then subsequently marries, we know that the spouse will automatically be considered the designated beneficiary when the participant dies. However, if the participant dies and the spouse wants the brother to take the death benefit, can the spouse make a post-death consent to the designation of the brother or is the spouse the beneficiary so that the only way the brother can take is to have the spouse make a valid disclaimer. Assume this is a defined contribution plan not subject to 401(a)(11). Regulation 1.401(a)-20, Q&A-33(a) indicates that a spouse may consent to any waiver at any time . . . . Thanks for your help.

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Since the spouse has a vested right to the benefits upon the death of employee the way to proceed is for the spouse to sign a valid disclaimer. But you need to confirm that the brother would be the person who will inherit the benefits as next inline under the terms of the plan since the spouse cannot direct who the benefits will be payable to under a disclaimer. I dont think a waiver of benefits would be effective after the death of the employee since the employee usually signs the beneficary request form to which the spouse consents.

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Our approved volume submitter plans provide that the surviving spouse may consent after the participant's death to the participant's designation of another beneficiary.

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