Beneficiary

[Soundbc1]

Have a new 401(k) plan and am doing enrollments.  This question came up twice: Both employee are separated from spouse (not a legal separation), they have not spoken in 4 years, one only knows the general where abouts, the other knows the spouse is in prison (domestic violence, etc).  Neither wants to contact with ex.

Suggestions on how to name someone else as primary beneficiary?

 

[MoJo]

I think you are out of luck with the one in prison - whereabouts are "known" and apparently won't be changing for 20 to life (just kidding - but uncooperative doesn't mean not findable).  They may want to file for divorce or at least a legal separation to resolve that (and other) issues.

As far as the other one - well, I would suggest attempting to find them.  If they have any information about the whereabouts of the spouse, I don't think you can credibly claim they can't be found.  Again, a domestic relations proceeding is in order.  If you can't reasonably find them, some jurisdiction will allow, under some circumstances, that they be "served" with the divorce papers via "publication" in a newspaper of general circulation in the area of last known residence.

[david rigby]

1 hour ago, MoJo said:

...or at least a legal separation to resolve that (and other) issues.

As mentioned on a few prior occasions, be very careful when you consider “legal separation”.   Please see Q&A 20, 22, 25, and (especially) 27 in IRS reg. 1.401a-20.  In Q&A27, note the sentence:

"Also, if the participant is legally separated or the participant has been abandoned (within the meaning of local law) and the participant has a court order to such effect, spousal consent is not required unless a QDRO provides otherwise."

Focus on the word “and”.

https://www.gpo.gov/fdsys/pkg/CFR-2016-title26-vol6/pdf/CFR-2016-title26-vol6-sec1-401a-20.pdf

 

[MoJo]

15 hours ago, david rigby said:

Focus on the word “and”.

https://www.gpo.gov/fdsys/pkg/CFR-2016-title26-vol6/pdf/CFR-2016-title26-vol6-sec1-401a-20.pdf

 

Hence the use of the term "legal" separation - which requires such a court order....

[david rigby]

Not always.  In my state (NC), there is no definition of "legal separation" and no court action.  If married parties live apart for at least 12 months, they are eligible to seek a divorce, and no court involvement prior to the divorce. Hence, for the purposes described in the reg, you may need the additional action of a court order.

[MoJo]

18 minutes ago, david rigby said:

Not always.  In my state (NC), there is no definition of "legal separation" and no court action.  If married parties live apart for at least 12 months, they are eligible to seek a divorce, and no court involvement prior to the divorce. Hence, for the purposes described in the reg, you may need the additional action of a court order.

If it isn't available, then obviously it can't be obtained.  I never said it was available in *all* states - just that it was an alternative to a divorce.  Doesn't alter the analysis.  Still a "legal" separation (where available) does suffice - and in Ohio, one can obtain a "legal" separation that enforces a separation agreement (settling all property and custody issues) without getting a divorce.  It actually happens all the time for estate planning purposes and obtaining Medicaid for a spouse needing nursing home care.  I've actually used it for the purpose laid out in the OP.  So, I'm not sure the "nit picking" here.  Use what is actually available in your jurisdiction....

[Soundbc1]

These are low paid individuals, I suggested they may want to go to "legal services" to start the process for a legal separation.

Thanks

Have a great weekend