Kabert

I'd agree with Peter that it depends on what the plan says - for example if plan terms refer to "spouse" by reference to DOMA or husband/wife. If you need to amend, and you're planning to file a Form 5310 to get a favorable DL upon termination, this "Note" under the What to File paragraph of the 5310 instructions might be useful: Note. A terminating plan generally does not have to be restated. However, the Service has the discretion to request copies of any amendments during its review of a terminating plan. A plan that terminates after the effective date of a change in law, but prior to the date that amendments are otherwise required, must be amended to comply with the applicable provisions of law from the date on which such provisions become effective with respect to the plan. The plan must be amended in connection with the plan termination to comply with those provisions of law that become effective with respect to the plan or before the date of plan termination, including any amendments made after the date of termination that were required in order to obtain a favorable DL. See also the instructions to line 3f. Regarding what amendments might be needed under your plan, see IRS Notice 2014-19 and Notice 2015-86, which were issued following Windsor and Obergefell, respectively.

I'm so sorry to learn of Jon's death. Our paths crossed perhaps a dozen times over the last 15 years. Kind, witty, dedicated, and an excellent tax professor and lawyer. From his work as a professor and his research work outside of the university classrooms, not to mention his family that I recall he'd mention once in a while -- I'm sure he is missed and remembered by many, but particularly now as the university school year has begun again, without him.

For what it's worth, the W-4P states this regarding someone submitting a W-4P but the SSN is not correct: "If you submit a Form W-4P that doesn’t contain your correct social security number (SSN), the payer must withhold as if you’re single claiming zero withholding allowances even if you checked the box on line 1 to have no federal income tax withheld." Presumably this would be a situation where the individual has a US address, so the 30% withholding rule for nonresident aliens won't apply. I recall reading somewhere that a plan can't withhold a distribution for a benefit that has been earned and requested, even if the participant doesn't have a valid SSN -- that doing so generally would violate plan terms. The plan's route generally would be to make the distribution and do its best to handle withholding and reporting. One route could be 30% withholding if the individual's circumstances fit the nonresident presumption. Another possible route -- several years ago, a TPA rep told me they sometimes followed the "applied-for" path in the W-2 instructions, which describe entering all zeros when filing the W-2 electronically for a taxpayer who doesn't have an SSN but who has supposedly applied for one (the instructions then discuss later issuing a W-2c when the individual actually gets the SSN and informs the plan sponsor). I assume the idea in following this W-2 rule is that the 3405 withholding rules say that, generally, the 3402 wage withholding rules apply except if 3405 has its own rule, and so they follow the W-2 instructions in this no-SSN situation for filing the 1099-R. I don't recall if the TPA rep said anything though about whether the IRS or SSA eventually comes knocking if there's no follow-up corrected 1099-R issued with a correct SSN.