QJSA-Can't Locate Spouse

[JAY21]

A participant's spouse left him 30 years ago without a divorce or legal separation. The participant has since died. In his will he left all to his parents. Obviously the will does not supercede federal law QJSA requirements but no one can find the spouse and they've hired detectives (multiple) to track her down and even other search organizations that can't find her. IRC 417(a)(2)(B) and Treas. Reg. 1.401(a)-20, Q&A #27 seem to provide that a plan can distribute benefits in a form other than a QJSA when it has been established to a Plan Representative that the spouse cannot be located. They have tried to do this but the Plan Representative is hesistant still despite some strong evidence of a thorough and lengthy search for the estranged spouse. Does anyone know of any court cases on this isses beyond the statute & regs cited above that might lend some support/comfort to the Plan Representative that they have the ability to pay death benefits out in a form other than a J&S in this situation ? Thanks for any thoughts as well.

[david rigby]

If it were me, and I had already engaged the Plan's legal counsel for advice, I might ask if that counsel would write me an opinion letter stating the facts, including the search process, concluding that the plan had met its requirements, and pay to whatever the next beneficiary is under the terms of the plan (not the terms of the will).

BTW, there are plans with a death benefit of zero in the absence of a spouse.

[JAY21]

Thanks Pax. Good input.