Is a participant who terminates at NRA or ERA entitled to a Top Heavy contribution?

[bevfair]

A small law firm plan allows deferrals and match. Plan is top heavy, only non-Keys receive. No other employer contributions. Match formula is 100% up to 3% for NHCEs and 100% up to 1.5% for HCEs, with a last day of the year requirement. 3 non-keys retired. 2 at Normal Retirement Age and 1 at Early Retirement Age. 2 NRA retirees deferred. One terminated on 12/31 and will receive match but not the full 3%. Since all 3 are terminated before the end of the year, are they required to receive the minimum top-heavy under the NRA/ERA provisions or do top-heavy rules supersede, meaning they do not receiving top-heavy as they are terminated? Document is unclear on the matter. Thanks for your input.

[Belgarath]

They are not required to receive top heavy if they terminated employment prior to the last day of the plan year. See 1.416-1, M-10.

However, your document may provide it, in which case you must follow the document. I've never seen a document that doesn't adequately spell this out, (albeit some of them are poorly written, making it difficult to determine) so you may want to dig a little deeper into the document and/or adoption agreement, if document utilizes an AA.

Have fun!