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In general, most plans do not allow any form of payment to be changed after the commencement date. Very likely, a joint and survivor benefit cannot be changed. Therefore, the choice of beneficiary has already been made; you both choose the other spouse. Important: this selection of spouse as beneficiary does not mean, "whoever is my spouse at my date of death", but instead it means "whoever is my spouse at the time my payments begin", so that subsequent divorce is not relevant. Usually, so you should verify. You state in original post, "...the beneficiary was to be revoked...". Since each person's benefit is in pay status, any "revocation" would be an impermissible change under the plan. The divorce decree has no authority to alter the plan. Also, your children and/or trust will not be relevant, since no beneficiary change is permitted. Also, it is unlikely a QDRO could change anything because a QDRO has no authority to require the plan to do something outside of existing plan provisions. As far as I can tell from your description, there is nothing to be done. Whichever of you (exes) outlives the other will receive the relevant survivor benefit from the deceased's benefit form, and no one else will get anything. A few plans might allow some type of change, but it is extremely rare; you should verify within the paperwork you received at the time of your election. For what it's worth, in my 40+ years as a pension actuary, I saw exactly zero plans that permitted a change of joint and survivor form or beneficiary after the payment commencement date.

https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/advisory-opinions/settlor-expense-guidance

I reach the same conclusion and for the same reasons as david rigby. I hope you both have the same good faith and resolve because the best I can envision for what you want to achieve is that when the participant dies, the beneficiary will give the participant’s children as gifts what is received by the beneficiary from the plan — after retaining the amount necessary to pay the beneficiary’s income taxes on the distributions. That will be a royal pain to (self) administer, but probably the payment amounts and the number of children will mean no gift tax/lifetime exemption issues. Unfortunately, artificial inflation of income may have other complications, such as the effect on calculation of Medicare premiums. Estate planning trickery in connection with pension plans is not in my wheelhouse. Maybe someone else can come up with something better.

To all: After researching and checking with the doc vendor as well, I concur that 110% applies to all situations involving HCEs, I simply could not find a way out. Thank you all for your comments and have a great weekend.

Good article - https://www.mayerbrown.com/en/insights/publications/2025/08/revisiting-the-state-of-the-law-in-erisa-forfeitures-cases

Based on the language of the prototype plan, our view is that it is the recordkeeper's physical location... where it does its business. This is probably also the state in which jurisdiction and venue will lie. A corporate entity's location for general jurisdiction is the state where it is incorporated or the state where it has its principal place of business and specific jurisdiction is any state in which the corporation has a continuous and systematic activity that gives rise to the action in the lawsuit.

I haven't had reason to come across this before but it's an interesting question. I also don't see an immediate answer unless I'm missing something obvious. I think the issue is whether a family member of a 2% S corp shareholder is simply an "employee" under 54.4980H-1(a)(15) or whether stock attribution makes the family member a 2% shareholder as well. I don't see anything in the ACA statute or regulations referring to an attribution system to use for this purpose. The regular 2% S corp shareholder fringe benefit rule is in Section 1372 and says that, for purposes of applying the fringe benefit rules under Subtitle A (Income Taxes), a 2% S corp shareholder is deemed to be a partner and that Section 318 attribution applies. But the ACA excise taxes are found in Subtitle D (Miscellaneous Excise Taxes). Would be interested to hear if others are aware of something on point.

I vote that 110% rule still applies.

Is the participant under/over age 59 1/2? Refunds are not subject to the 10% penalty tax. So if they are under age 59 1/2 it would be advisable to issue 2 1099-Rs: one with code '1' and another with code '8'.

Any allocation okay. I generally do a Memorandum to formalize the allocation.