Spousal Consent - Legally Separated but not Divorced

[Guest ircreader]

Question: Does Treas. Reg. 1.401(a)-20, Q&A-27 require the legal separation be by court order? Would it require payment of benefits to the children or the legally separated surviving spouse given these facts?

A North Carolina participant designated her children as beneficiaries and represented that she was legally separated (so no spousal consent). Under NC law parties can enter into legal separation but not take the final step of getting divorced (so they can keep health benefits, etc.). The legal separation is not by court order; it is a contract the parties enter and file in the recorder's office. Treas. Reg. sec. 1.401(a)-20, Q&A-27 states that if the participant is legally separated or has been abandoned and the participant has a court order to such effect, spousal consent is not required unless a QDRO provides otherwise. Not clear whether the court order requirement applies to "abondonment" or "legal separation" or both here.

As I understand NC law, the parties could not remarry unless they proceeded with a divorce. The parties were legally separated for 15 years and now the participant has died.

Anybody have experience with this or have an opinion on the answer to the question above?