QPSA waiver question

[Kevin C]

Participant terminated July 1994. Participant made a benefit election in November 1994 to receive a J&S benefit with her spouse as beneficiary, starting April 2008. The plan provisions in effect in 1994 reduce the accrued benefit for terminated vested participants by the value of the QPSA unless they elect to waive the pre-retirement death benefit. Participant elected to waive death benefit coverage. Spouse signed the form, but his signature was not properly witnessed.

Participant died in 1997 about the time we took over the plan. Based on the information provided at the time, we advised that the attempted QPSA waiver was invalid and prepared distribution paperwork for the surviving spouse. Our client could not locate him.

Now fast forward to today. Our client was going through old personel records looking for information that might help them locate the surviving spouse. They found a beneficiary designation form dated February 1992 where the spouse waived the QPSA and consented to participant naming her grandkids as beneficiaries. Spouse's signature on this form was witnessed by a notary.

The plan provision allowing a waiver of the pre-retirement death benefit does not mention a witness requirement for the consent.

Does anyone have an opinion about whether the 1992 beneficiary designation affects the need to have the spouse's signature properly witnessed on the 1994 election?

[david rigby]

Do 1994 plan provision change, in a relevant manner, the death benefit provisions in effect at time of the 1992 waiver? If not, the waiver should be usable.

(Yes, I understand 411d6 may not be relevant here.)

[Kevin C]

There were no changes to the death benefit provisions between the 1992 waiver and the participant's death in 1997.

I found in 1.401(a)-20, Q&A 31 where after a QPSA waiver, the participant can change the form of preretirement benefit without obtaining spouse's consent. But, it also says that the beneficiary can not be changed without the spouse's consent, except for changing back to a QPSA. The 1992 spousal consent says it applies to the beneficiary listed on the form.