Divorced participant dies w/out changing beneficiary designation that

[Guest M. Massaro]

I have a resident alien participant in an ERISA plan that died intestate. He was married and divorced twice. The beneficiary designation that we have is for the second wife while he's married. On that designation he selects his son from the previous marriage as the beneficiary but new wife does not consent. Neither divorce settlements provide for any plan benefits and the plan document says to pay to spouse if married or other beneficiary if spouse consents. Is the beneficiary designation denoting the son as beneficiary a valid designation now that they are divorced or does it remain invalid since it was invalid at signing? We know that it wasn't valid at time. Can we pay the balance to the estate of the individual? Any insight for the 7th circuit on court cases would be great.

[Alf]

I don't think that you can consider the benficiary designation. If it was completed while married and the spouse didn't consent, it isn't a beneficiary designation. Treat the participant as if he died without designating a participant.

[Guest]

You did not say if the plan is subject to the joint and survivor annuity rules. If not, then do not need surviving spouses consent.

If subject to JSA rules, look at Hurwitz v. Sher 982 F2d 778, and Pedro Enterprises v Perdue 998 F2d 491 (7th Cir 1993)

[KJohnson]

b2kates--

Even if Plan is not subject to QJSA isn't consent still required to designate anyone other than a spouse as a beneficiary for the pre-retirement death benefit-- 401(a)(11)(B)(iii)(I)?

[Guest M. Massaro]

Plan is subject to QJSA.