(b)lines Ask the Experts – Must a Nonelecting Church Plan Require Spousal Consent?

“Our retirement plan is a nonelecting church 403(b) plan (has not elected to be covered under ERISA). Neither our plan document nor our policies require a spousal consent for a plan loan or any distribution. Would community property laws require us to get spousal consent for loans or a distribution?”

Stacey Bradford, Kimberly Boberg, David Levine and David Powell, with Groom Law Group, and Michael A. Webb, vice president, Retirement Plan Services, Cammack Retirement Group, answer:

Not likely. Though your plan is potentially subject to the state laws of all states where the plan operates and which your participants (including retirees) reside, no states require that 403(b) or other defined contribution (DC) retirement plans include language mandating spousal consent in their retirement plans.

Having said that, there is nothing that would prevent the plan from requiring spousal consent in its plan document for plan loans and distributions, just as there is nothing that would prevent the plan from stating that one’s spouse is the primary beneficiary for plan benefits unless he/she waives that right in writing. In addition, non-electing church plans can divide retirement plan assets under a domestic relations order if one is provided to the plan. And finally, as this prior Ask the Experts column pointed out, state laws can be quite complicated with respect to beneficiary designations, so in the event of any disputes, outside counsel with specific expertise in such matters should be consulted.

NOTE: This feature is to provide general information only, does not constitute legal advice, and cannot be used or substituted for legal or tax advice.