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The answer to your question Albany Consultant is in the DuPont case the Supreme Court made it clear you are required to follow the plan document. Cite that case and give the attorney the plan document which says the spouse is required to be the beneficiary absent the proper waiver.

Why not leave the money in the plan and just have him re-pay the full commission? Did he not have other comp. to support the deferral?

First worry is you have to pass coverage. So if D & E are failing coverage on their own, the next logical step is to aggregate them to see if D/E combined can pass coverage. If so, then you have to test D/E combined for ADP and ACP. But, if E doesn't have a match, not sure how you can get D match to satisfy coverage. Prospectively you can make HCEs ineligible for match, but that doesn't fix the past. If E has a discretionary match provision, a match to E could make fix the coverage problem. If not, an 11g amendment that adds a match to E may the only way to fix.