Date of notary and participant's signature

[FundeK]

If a plan is subject to the J&S provisions and requires spousal consent, that consent must be witnessed by a notary or plan representative. Does it matter if the participant signs the form after the spouse and notary? I have always had an issue with this because I thought the participant had to make an election and the spouse then had to agree to that election and signed the form showing this agreement. But, now I am questioning this.

[chris]

Technically, it should happen that way, but, practically speaking, as long as the spouse understands the effect of consenting (signing off on the form signifies consent...), then probably not a problem.

I'm assuming the notary is notarizing the spouse's (and not the participant's) signature. Otherwise, the notary may have a problem......

[MoJo]

I think it depends on what the spouse is consenting to. If the spouse is consenting to the participants specific election (as opposed to a blanket consent to this and all future elections, then the spouse needs to sign after the election is made, so the consent is specifically given. In all cases, the notary needs to either witness the spouse sign, or have the spouse verify that the signature is theirs - hence, the notary's signature must come AFTER the spouses signature or verification....

[david rigby]

The notary's signature must always come after the spouse's. The question is whether the spouse's can precede the participant's.

It seems contrary to the purpose for that ordering, but I doubt you can depend on the notary to enforce that issue. However, if the witness is a plan representative, you can reach the opposite conclusion.

[mbozek]

There is one case on the issue of spousal waiver validity- Butler v. Encyclopedia Brittanica, 41 F3d 285, which considered the validity of a waiver not signed in the presence of a notary. Also discussed the discretion of Plan admin to determine if a waiver is valid.