Spousal waiver of annuity witnessed remotely

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

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.

Waiver of what?  Retirement annuity benefits and/or survivor annuity benefits. 

In my family law world you might be talking about waiving QJSA and QPSA benefits? 

Is it an ERISA qualified plan? Or a Federal, State, County, City, or Municipal plan or an International Plan. 

Is it a defined contribution plan that acting in accordance with Secure 2.0 has added any form of annuitized payout of benefits? 

Is it an IRA?  

Is it a waiver set forth in an antenuptial agreement?  

In what sort of document will be waiver appear?  

Did the Participant retire during the marriage or after the divorce?  

In many plans an award or a waiver of survivor annuity benefits executed at retirement during the marriage do not survive a later divorce and must be reinstated by a COAP or MRPDO, for example, FERS and Military.  On the other hand, such elections with respect to ERISA qualified plans do survive survive a later divorce. 

David

While Tom’s query used the word “waiver”, I guessed from context it’s about ERISA § 205 and a spouse’s consent to a participant’s election against a survivor annuity (if the plan provides or allows an annuity) or designation of a beneficiary other than the spouse.

Or, a plan designed to meet Internal Revenue Code § 401(a)(11) and § 417.

And from context I guessed Tom does not ask about different law or plan provisions that might apply regarding a governmental plan or a non-ERISA church plan.