Sections 401(a)(11)(D) and 417(d) of the Code have a optional one-year hold out rule which allows a plan not to treat a participant as married unless the participant have been married for a year. If a plan does not utilize this one-year holdout rule, will amending the plan result in a prohibited 411(d)(6) cutback of an protected benefit? The regs say that a protected benefit may not be eliminated merely b/c it is payable to a spouse. The regs also allow the elimination or reduction of a protected benefit if it has not already accrued. Therefore, assuming (for the sake of argument) it is a protected benefit, it could be applied to all future plan participants who get married. Correct?

[This message has been edited by RMM (edited 12-27-1999).]

It certainly could be applied on a prospective basis to future participants.

What accrued benefit would be cut back?

The spouse's right to payment on the death of the participant is not an accrued benefit - 1. the pt hasn't died, and 2. a beneficiary's contingent benefit doesn't make the beneficiary a participant (not exactly on point but analagous).

Also, death benefits that are greater than the mandatory ERISA death benefits are "ancillary" benefits, which can be eliminated.

I would think you could change the rules for anyone who hasn't died yet. However, if you have a situation where someone who has just married is on his deathbed, I wouldn't do it (that would be asking for trouble).