Spouse absent for 25 years -- consent still needed?

[Guest lori_eriksen]

My mother has been married to my father for over 30 years but hasn't seen him in over 25 years. As far as we know, he did get remarried without getting a divorce from my mother. She has a 401k with her former job and wants to roll it over or put it in an IRA. Does she still need his consent or is there some type of waiver she can get? Any inofo on this matter would be GREATLY appreciated.

[david rigby]

This issue is addressed in IRS regulations, at least to some degree. Reg. 1.401(a)-20.

http://www.access.gpo.gov/nara/cfr/cfrhtml...26cfrv5_00.html

Q&A 27 reads as follows:

Q-27: Are there circumstances when spousal consent to a participant's election to waive the QJSA or the QPSA is not required?

A-27: Yes. If it is established to the satisfaction of a plan representative that there is no spouse or that the spouse cannot be

located, spousal consent to waive the QJSA or the QPSA is not required. If the spouse is legally incompetnent 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 such effect, spousal consent is not required unless a QDRO provides otherwise. Similar rules apply to a plan subject to the requirements of section 401(a)(11)(B)(iii)(I).

There might be another issue. If your parents are not divorced, then any "remarriage" is not valid. However, you might want to consider whether he did obtain a divorce, just to "cover all the bases."

[RCK]

Is the plan's representative saying that a spousal waiver is necessary? In some cases, the participant can take the distribution as a lump sum without spousal consent. I would double check that before proceeding any further.

Otherwise, I agree with pax.

RCK

[Guest lori_eriksen]

Thanks for the response