PLAN DOCUMENT REQUIREMENTS FOR ELECTIONS NOT TO PARTICIPATE

[KJohnson]

MUST A PLAN CONTAIN AN EXPLICIT PROVISION ALLOWING A ONE TIME IRREVOCABLE ELECTION NOT TO PARTICIPATE OR IS THE FACT THAT AN EMPLOYEE EXECUTED THE ELECTION ENOUGH? ANY CITES?

[Alan Simpson]

Check your plan document to see if the participant can even elect-out of the plan. Most standardized prototypes do not allow for a participate to elect-out. Instead you must use a non-standardized prototype to allow the election to not participate.

[KJohnson]

THE DOCUMENT DOES NOT CONTAIN A PROVISION FOR THE OPT-OUT.

MY QUESTION IS, IN ABSENCE OF A PLAN PROVISION, CAN AN EXECUTED ELECTION THAT MEETS ALL OF THE REQUIREMENTS OF 1.401(k)-1(a)(3)(iv)BE EFFECTIVE WITHOUT SPECIFIC "OPT-OUT" LANGUAGE IN THE DOCUMENT ITSELF? THE REG ITSELF DOES NOT SEEM TO REQUIRE A PROVISION IN THE DOCUMENT.

ALSO, I BELIEVE THAT COURTS HAVE HELD THAT A "PLAN DOCUMENT" CAN CONSIST OF MORE THAN ONE WRITING. THEREFORE, ASSUMING YOU NEED PLAN LANGUAGE, COULD EACH "OPT OUT" ELECTION BE CONSIDERED PART OF THE PLAN DOCUMENT?