Guest ladler Posted March 11, 2004 Posted March 11, 2004 Spouse of employee is incompetent but no legal guardian has been appointed. Employee wants a distribution from defined benefit plan (electing out of QJSA). Can the plan allow for this distribution without spousal consent?
Lame Duck Posted March 11, 2004 Posted March 11, 2004 IMHO, the purpose for the appointment of a guardian is to protect the rights of the incompetent party. A QJSA is such a right. Without any cites, I would be very hesitant to pay out the benefit to the participant unless a guardian had been appointed and had signed the elction on behalf of the spouse. Does anyone have a different opinion?
Guest FormsRmylife Posted March 11, 2004 Posted March 11, 2004 Regulation 1.401(a)-20, Q&A-27 provides that the participant can be the legally incompetent spouse's legal guardian and as such can waive the QJSA. It may be that under your state's law, the participant does not need to have a judge appoint him/her as the spouse's legal guardian. There may be some provision for this legal status when the couple is not legally separated.
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