ERISAAPPLE

If you already have a marriage settlement agreement or similar agreement, that will generally control. If you think the proposed QDRO is not consistent with that agreement, you can dispute it in court. If the QDRO addresses matters over which that agreement is silent, you can also challenge that in court.

You can find your answer in the purchase agreement and the plan document where it defines who was the administrator for the plan. Good luck.

Make sure the plan allows for the immediate distribution and the QDRO does too. Other than that, I can't even begin to see why there would be an issue.

If a prior spouse waived in favor of, say, the children, it seems an argument could be made that is it. The benefits go to the children. A subsequent marriage doesn't automatically revoke the prior spouse's waiver, at least for benefits accrued prior to the subsequent marriage. Clearly though, an argument can be made that the statute says the spouse is the beneficiary, and thus a subsequent marriage automatically controls over the prior spouse's waiver. If the participant had been single and named the kids, I think that would be the result. I just could not find any direct guidance on this. I think the better answer is the old beneficiary form is no good upon a remarriage. I just could not find any guidance on this, and was surprised I could not. My hypothetical fact pattern is not an issue in the original post, and is not an issue for any of my clients, so it is not ripe. I was just thinking out loud.

Mike is there a case on this? I could not find any guidance.

You may be right. I do know the Kennedy case in a footnote said the court took no position on whether the spouse can bring a claim against the other spouse.

JPOD, I'm not sure that is always true. This case here seems to illustrate one example.

Larry, Why don't the owners just get a QDRO if they want a portion to go to the children of the prior marriage? That seems easier than requiring spousal consent for every distribution.

A plan excludes unions and has a last day of the plan year allocation requirement for profit sharing contributions. An employee enters the plan, but later during the year changes job to a union position. Can the plan require a participant to be an eligible employee on the last day of the year to be eligible for an allocation, or is that limited to employment on last day of the year?

With any other marital asset, the family law judge can give the spouse a remedy.

The key finding here is that the money was in fact out of the trust at the time the participant died. I wonder where the money was on Saturday and Sunday. It could easily have been in the general assets of the plan's custodian or directed trustee. It could just as easily been held in the trust. The opinion does not dig down to that granular level, and it appears the administrative record may not have either. Maybe it did.

The check box in the FTW Adoption Agreement that excludes pre-participation pay says "Exclude pay earned before participation in the Plan." (I added the underline.) There is a note under that checkbox which says "NOTE: If selected, Compensation shall include only that compensation which is actually paid to the Participant during that part of the Plan Year the Participant is eligible to participate in the Plan." I think that note is enough to allow the employer to interpret the plan to exclude compensation paid to a newly ineligible participant.

Good luck Jeanie. I lost a loved one this year. No words can truly capture the grief.

I hate to say it Jeanie but it is going to be very difficult for you to recover the market losses. A 401(k) plan is an individual account plan and the value of the benefits depends on the value of the investments held in the account - in this case most likely Vanguard mutual funds. As the stock market goes up and down, the value of those investments will go up and down. In all probability, your late husband selected those investments, and the employer will not be responsible for his selection. Vanguard would also not be responsible for the value of the investments going down. Your late husband's employer or Vanguard or both (most likely the employer, but not likely Vanguard) would be responsible for an unreasonable delay in giving you control over the investments in the account. The question in lay person's terms is going to be whether anybody acted unreasonably in delaying giving you access. I think depending on the circumstances a delay of almost two months could be considered unreasonable. For example, when you first called and notified them of the death, and if you told them you are the surviving spouse, if they just sat on their hands and did nothing for almost two months, that could be considered unreasonable. The problem though is neither Vanguard nor the employer will likely just roll over. It will be extremely difficult to get them to budge. They have the advantage and they know it. In these types of cases, that involve investment disputes, it is highly unlikely the DOL will get involved. They will say it is a litigation matter and will not feel it is worth their time or resources. In the end I am guessing you would have to file a lawsuit, and there is a Supreme Court case in which Supreme Court Justice Roberts, in a concurring opinion, suggested you may have to file a claim with the plan and exhaust your administrative remedies before you can even file a lawsuit. If you want to try and recover it will be a lot of work for you. It will be very difficult, and if you want to hire someone to help, it would probably cost more than the $8,000 in losses. It is unfortunate that 401(k) plan litigation is this way - and in fact a lot of litigation is this way - but the old adage of don't throw good money after bad money may apply here.

It seems to me no TPA wants to contract itself into a position where it has a duty to monitor whether an employer's agents - such as an owner, officer, or employee - has authority to deal with the plan.

I have always heard other ERISA attorneys take the position that a trustee has to be eligible to serve as a trustee under state law. They seem to think ERISA does not preempt state law in that area. I have never had the need to research the issue.

Contact the Department of Labor. They should be able to help you. Also, send the plan administrator a written benefit claim and include an original death certificate.

Are cash balance participants required to receive an interest credit after their NRA? If they do not, do we have to give the participant a suspension of benefits notice? This is not a question of what the plan says. It is question of what the plan must say.

The 5500 (both regular and SF) require a PT to be reported. I am not sure if the 5500 EZ requires it.

ESOP guy, I would not rely on a reasonable interpretation of the plan document, and by that I mean don't rely on judicial deference of a discretionary interpretation. I'm not sure you are saying that, but just in case you are I thought I would mention this. The plan document is required to follow the definition of hours of service in the ERISA regs. If the interpretation of the plan document is not consistent with the law, the courts would not defer to the fiduciary's interpretation. That would be a de novo review. Of course, if you are dealing with hours of service that exceed the minimum requirements of the law, then that could be a matter of interpretation that would be given deference by the courts. That does not seem to be the case here.

I recommend you speak to a lawyer. When you say part of the employees hours are billed to the company and part are billed to the government, who is doing the billing? For whom are the employees performing services.

This was helpful. Thank you.

Under the IRS rules the employer is not supposed to correct income tax withholding errors in later years. I don't know if that is what you mean by "reverse the payroll," but just in case.

We know you can exclude pre-participation compensation from the safe harbor contribution. What about post-participation compensation where the employee moves in the same plan year to a position that is not an eligible employee? For example, an employee is hired in a non-union position, enters the plan in 2018, and then later in 2018 moves to a union position that is not eligible for the safe harbor. Can the compensation paid to the employee after the employee moves to the union position be excluded? To phrase the more question more precisely (since everyone is going to ask what the plan says), can the plan provide for such an exclusion (assume all the notice requirements and other requirements of safe harbor are met). I read the regs to say the comp. can be excluded, but I have just never seen this before.

I missed the part about you sending out the SMM timely. Yes, you can send out the SMM timely in lieu of sending out a revised safe harbor notice timely, given that the notice never mentioned compensation in the first place. I would mention in the SMM that it effectively changes the safe harbor contribution amount. This shows we should not rely on this board for our answers. I was responding only half reading the original question. I was answering a call from a client, a colleague came in who wanted to discuss Grand Theft Auto, I was trying read e-mails, and trying to read a plan document all at the same time.