Spousal Consent - USC 1746

[Kevin C]

In a DC Plan subject to J&S requirements, a participant with a large balance is eligible for a distribution.  His spouse is incarcerated.  He sent the distribution paperwork to his spouse to get her consent to a lump sum distribution and her waiver of the J&S benefit notarized.  She signed both places, but the prison turned down the request to have the paperwork notarized.  Instead, they provided a notice that includes the language for an unsworn declaration under penalty of perjury under USC 1746 (and an identical state law), which she completed, that they told her means she doesn't need to have the paperwork notarized.

Has anyone come across this before? I couldn't find anything even mentioning an unsworn declaration in the context of a qualified plan.   I'm not seeing this as overriding the requirement that the spouse's signature be witnessed by either a plan representative or a notary.  But, I wanted to ask here before responding to the participant.

Quote

 

28 U.S. Code § 1746. Unsworn declarations under penalty of per­jury

Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:

(1)

If executed without the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date).

(Signature).

...

 

 

[Peter Gulia]

A plan’s administrator should ask its lawyer’s advice.

 

If the plan has provisions that follow (or are construed or interpreted to follow) ERISA § 205, it is not enough that the spouse’s act be genuine; rather, the spouse's consent must “acknowledge” the effect of the participant’s election, and must be “witnessed by a plan representative or a notary public[.]”

 

28 U.S.C. § 1746 might in some circumstances treat a declaration under penalty of perjury as a substitute for an affidavit.  But that is not the same as an acknowledgment.  And it is not witnessed.

 

Beyond whether a declaration is sufficient for a spouse’s consent, a plan’s administrator might want its lawyer’s advice about whether the administrator’s conduct would meet its ERISA § 404(a) fiduciary responsibility, and would under ERISA § 205(c)(6) protect the administrator from liability for an incorrect payment (or for denying a benefit).

 

And if a plan’s administrator denies a participant’s claim for a distribution other than a qualified joint and survivor annuity, the administrator might be punctilious in following its ERISA § 503 claims procedure, affording opportunities for a participant to perfect his claim or argue against the administrator’s interpretation of the plan.

[Kevin C]

Peter,  thank you.