Spousal waiver of annuity witnessed remotely

[Tom]

I know there was an allowance during Covid. A client is asking if they can witness the spouse's waiver via remote video.  My answer was going to be have the spouse show driver's license to confirm the person is the spouse.  

I'll check further on the rules for this.  But does this sound ok?

Follow - up - I checked the regulations on this.  No need to comment (unless you want to.) 

Thank you

[Peter Gulia]

A plan’s administrator might want its lawyer’s advice. Here’s a background:

A notary or plan representative must witness the spouse signing the consent. ERISA § 205(c)(2)(A)(iii) (“the spouse’s consent . . . is witnessed by a plan representative or a notary public”).

In 2006, the Treasury department interpreted this to require physical presence. 26 C.F.R. § 1.401(a)-21(d)(6)(i) (“witnessed in the physical presence of a plan representative or a notary public.”), https://www.ecfr.gov/current/title-26/part-1/section-1.401(a)-21#p-1.401(a)-21(d)(6)(i).

Under a 2022 proposed interpretation of the statute, a notary may witness the spouse’s signing by using live audio-video technology and meeting all requirements and conditions under the proposed rule and the State law that applies to the notary. Likewise, a plan representative may (if the plan permits a representative to witness a spouse’s consent) use live audio-video technology under controls specified in the proposed rule. Use of an Electronic Medium to Make Participant Elections and Spousal Consents [notice of proposed rulemaking], 87 Fed. Reg. 80501–80509 (Dec. 30, 2022).

That notice states: “Prior to the applicability date of the final regulation, taxpayers may rely on the rules set forth in this notice of proposed rulemaking.” Id., at 80506. But it is unclear whether that statement restrains any executive agency.

Further, a court deciding a dispute—for example, a spouse’s or surviving spouse’s challenge that an ostensible consent was ineffective—does not defer to an executive agency’s interpretation of a statute, even an interpretation stated by a final rule. An agency’s interpretation might not persuade a court. Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) (A federal court may consider, but must not defer to, an executive agency’s interpretation of a statute. For a question of law not already answered by a judicial precedent, a court must decide a dispute with the court’s interpretation of the statute.).

About whether to accept or refuse a remote witnessing, a plan’s administrator might want its lawyer’s advice about how to form loyal, impartial, and prudent decisions.

This is not advice to anyone.