ERISA TSA or not?

[Guest getaxa]

A participant has a 403(b) with a 501c(3) org that is not governmental, non-church, that has employer contributions (no vesting) with a plan doc has an ERISA TSA.

If that participant separates from service and retains the 403(b) account, is that account still an ERISA 403(b)? or is it not subject to ERISA anymore because it no longer has a plan.

Does the participant need spousal consent for beneficiary changes?

Would loans be subject to provider guidelines or would the ERISA or plan docs still dictate loans parameters?

If the 403(b) is not subject to ERISA anymore, does the participant gain or lose any benefits?

Thanks for any help!

[mbozek]

If benefits accrue while the plan is subject to ERISA then the annuity/ account will be subject to all ERISA requirements after termination until the funds are rolled over to an IRA or paid to the participant. If the benefits are not held in an ERISA plan then the account balance may be subject to creditors claims under state law.

[Carol V. Calhoun]

A 403(b) contract under a plan subject to ERISA must impose the limitations of ERISA (including the spousal consent requirement). That 403(b) contract is (at least in theory) owned from the beginning by the employee. Thus, the spousal consent requirement will not go away just because the employee separates from service.

The only way to get around the spousal consent requirement for subsequent distributions would be to get the spouse to consent to a full distribution from the 403(b). If that occurred, the distribution could be rolled over to an IRA (or to a non-ERISA 403(b), if available) that did not have a spousal consent requirement for subsequent distributions. But earlier or later, the participant must at some point give consent to the distribution, if it is not in a qualified joint and survivor form.