challenge by first spouse of bigamist participant to spousal consent g

[Guest MWK]

A lump sum total distribution from a DC Plan was made to a separated participant (with spousal consent from particpant's spouse, his second wife) in connection with the plan's termination. Nearly one year later, notice was received that the participant was, in fact, still married to his first wife at the time of the distribution, and that in cashing out his pension monies the participant may have violated a preliminary injunction issued during the pendency of his divorce action from his first wife. The participant and his first wife had been legally separated several months prior to the distribution. The plan had on file a marriage certificate for the second marriage dated prior to the distribution, and the plan has never received notice of a QDRO or DRO at any time. I am looking for guidance on the following: 1) once a participant is legally separated from a spouse, is spousal consent still required? 2) Did the plan administrator have any obligation to question the legitimacy of the 2nd marriage? 3) In the absence of a QDRO or notice of a pending QDRO did the plan administrator have any obligation to question the consent of the 2nd spouse? Any wisdom, including IRS Q&A references would be greatly appreciated. Many thanks

[Guest PC]

The answer to question 1):

Spousal consent is not necessary if the participant is legally separated 1.401(a)-20, Q&A-27.

[Guest MWK]

Thanks for the response. However, the jurisdiction is Delaware, and the separation is not a formal "legal separation." Unless there is an applicable court order, which in this case there is not, all marital property stays just that until the final decree of divorce is entered.