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A separated spouse remains a spouse for survivor-annuity or spouse’s-consent purposes. No matter how long a separation continues, a marriage does not end until a court orders the divorce (or a spouse dies). For example, Davis v. College Suppliers Co., 813 F. Supp. 1234 (S.D. Miss. 1993); see also Board of Trustees of the Equity-League Pension Tr. Fund v. Royce, 238 F.3d 177, 25 Empl. Benefits Cas. (BL) 2394 (2d Cir. 2001) (although a husband and wife were separated for at least the last 15 years of their 19 years of marriage, they remained spouses until the participant’s death; and a written separation agreement had no effect concerning the plan’s or ERISA’s survivor-annuity provisions). Likewise, a division of spouses’ marital property does not end their marriage. For example, Callegari v. Scottrade, Inc., No. 16-1750, 2016 U.S. Dist. LEXIS 105468 (E.D. La. Aug. 10, 2016) (court-approved consent judgment to separate community property did not end the marriage); Gallagher v. Gallagher, No. 12-40027-TSH, 57 Empl. Benefits Cas. (BL) 2648, 2013 U.S. Dist. LEXIS 26061 (D. Mass. Feb. 26, 2013). But as with any continuing marriage, a spouse might consent to waive a survivor annuity, and might do so in a way that meets ERISA § 205’s and the plan’s conditions. Although it’s infrequent, I’ve seen separation agreements that include a qualified election and spouse’s consent even a cautious fiduciary would accept. (It can work if at least one of the separating spouses gets really good lawyering.) If the participant says a separation agreement includes the spouse’s consent, the plan’s administrator might consider that claim when the participant submits her counterpart of the separation agreement, showing the notary’s certificate and seal or stamp. The plan’s administrator would read at least the part of the agreement that might state the spouse’s consent and decide whether it is sufficient under ERISA § 205’s and the plan’s conditions. Or, a plan might (but need not) excuse a spouse’s consent “if the participant is legally separated . . . (within the meaning of local law) and the participant has a court order [not a mere separation agreement] to such effect[.]” But, a plan must not excuse a spouse’s consent if a qualified domestic relations order “provides otherwise[.]” 26 C.F.R. § 1.401(a)-20, A-27.

From the Pension Distribution Answer Book. QJSA can be waived w/o spousal consent provided there is a court order documenting the separation and there is no QDRO. From your description it appears that each of those conditions have been satisfied. Q 11:29,Are there circumstances when spousal consent to a participant's election to waive the QJSA or the QPSA is not required? Last Updated: 10/2022 Yes. If it is established to the satisfaction of a plan representative that there is no spouse, or that the participant's spouse cannot be located, spousal consent to waive the QJSA or the QPSA is not required. If the spouse is legally incompetent to give consent, the spouse's legal guardian, even if the guardian is the participant, may give consent. Also, if the participant is legally separated or the participant has been abandoned (within the meaning of local law) and the participant has a court order to that effect, spousal consent is not required, unless a QDRO provides otherwise. Similar rules apply to a defined contribution plan not subject to the minimum funding standards of Code Section 412, which pays the participant's vested accrued benefit to the surviving spouse upon the participant's death. [ Treas. Reg. §1.401(a)-20, Q&A-27] A participant may elect out of the QJSA in favor of an actuarially equivalent alternative joint and survivor annuity that satisfies the conditions to be a QJSA, without spousal consent. [ Treas. Reg. §1.401(a)-20, Q&A-16; Notice 2007-7, 2007-5 I.R.B. 395, Q&A-11] (See Q 11:17.) Because a QOSA (see Qs 11:38 – 11:46), by definition, satisfies the conditions to be a QJSA, no spousal consent is required if a plan participant elects a QOSA that is actuarially equivalent to the plans QJSA. If the QOSA is not actuarially equivalent to the QJSA, spousal consent is required for the participant to waive the QJSA and elect the QOSA. [ Notice 2007-7, 2007-5 I.R.B. 395, Q&A-11]

The two crucial questions are does the plan include or exclude non-resident aliens? and does this individual receive income from US sources (e.g. is on the US payroll)? If the plan includes NRAs and this individual is on the US payroll, and they otherwise meet the age, service and entry date requirements of the plan, they are covered by the plan.

The first eligibility computation period for ER is 5/1/2020 to 4/30/2021. Said employee is not eligible for ER money. My assumption is said employee did not work > 1000 hours in 2 months. So for this employee, you start looking at calendar years to see if worked 1000 hours for ER eligibility. 2021 calendar year < 1000 and not even an employee.... but still not eligible for ER. 2022 > 1000 hours I like 1/1/2023 for start of ER eligibility. Hopefully, the plan does not do the one year hold out rule, or rule of parity.... I don't like those plans....

So funny - yesterday I saw HCE post basically the same question but in a slightly different context, did a quick Google and found and posted this exact item in response to that question. Great minds, right?

Agreed. They are only excluded if they are (1) non-resident (live outside US), (2) an alien (non-US citizen, not Martian), (3) not on a US-based payroll AND (4) the plan document/AA excludes such employees.

Have both entities adopted the Plan? I'm assuming yes. If so why wouldn't you simply aggregate his comp from both entities, limiting the aggregated comp to 401(a)(17) limit for 401(a)(4) testing? I don't use Datair but it might be an issue where it's having trouble reconciling the same individual in the plan having both SE compensation and W-2 compensation. You might get a different result for deduction purposes since in ASG each entity has it's own deductible limit based on camp paid by the entity

Her primary residence is "THIS half of the house" but after he moves out she will live in the other side of the house 51% of the time. (Sorry, I'm slap-happy here, vacation next week!)

Try Chief Counsel Advice 200813042, which addresses this issue pretty extensively in the context of post-termination insurance renewal premiums for retired agents: POSTU-140193-05_WLI02 (irs.gov)