Incarcerated spouse of participant receiving a distribution from a terminating pension plan

A pension plan is terminating.  One of the participants who has a distribution over $5,000, has to get a waiver of the J&S annuity from her spouse in order to get a lump sum distribution.

Problem is:  spouse is incarcerated and has been so from the time they were married.  How could she get his waiver especially if she has not been in direct communication with him for years? Can she get some sort of court order that the marriage has been abandoned?  Is there a precedent case for this?  

That a participant’s spouse is imprisoned does not by itself end the marriage.

That a participant’s spouse is imprisoned might not by itself mean the spouse abandoned the participant.

Even if it does, that circumstance might excuse a spouse’s consent only if “the participant has a court order to [the] effect” that the spouse abandoned the participant “within the meaning of local law”. 26 C.F.R. § 1.401(a)-20/Q&A 27.

You mention that the participant has not communicated with her spouse “for years”. But does anything prevent her from asking him for his consent to her qualified election?

If there is time before the due date for the participant to submit her election, the participant might sue for divorce. If a court grants the divorce and it is effective when the participant submits her qualified election, the then former spouse’s consent might not be needed.

Without a consent or a divorce, the plan would pay the qualified joint and survivor annuity the participant elects. Or, if the participant does not elect, the default QJSA the plan provides.

Before considering anything, the plan’s administrator should get its lawyer’s advice about what the plan provides. The plan might be more restrictive than what ERISA and the Internal Revenue Code might allow a plan to provide.

Before you present any information to your customer, you’ll want to follow Ascensus’ guidance about how to avoid giving tax or legal advice.

My explanation here is not advice to anyone.

21 hours ago, Peter Gulia said:

If there is time before the due date for the participant to submit her election, the participant might sue for divorce. If a court grants the divorce and it is effective when the participant submits her qualified election, the then former spouse’s consent might not be needed.

Or a legal separation pursuant to a court order, correct? Which could be quicker?

For the situation the inquirer describes, I imagine getting a separation order that meets the rule’s conditions might be little or no quicker than getting a divorce.

If a plaintiff or petitioner asks for the court’s order finding that the spouses are separated and asks that the court grant that order without or before granting a divorce, a judge might ask why. On hearing an explanation about undoing the spouse’s right not to consent to the participant’s pension election, a judge might find it would be unfair to grant such a separation order without first having divided the spouses’ marital property. If the separation order is unneeded for a noneconomic purpose (the spouses already are practically living apart), pursuing a divorce might be more straightforward.

Building on Peter's last post, in addition, legal separation might not exist under local law, in which case, the judge would properly refuse to issue the order.

Thanks Peter and everyone else for your input.