Client has a 401(k) plan subject to J&S rules. A married participant is requesting a distribution and has been married only a few months. Can the plan administrator make the distribution without the spouses consent under the one-year marriage rule? Does the plan document have to specifically state this rule? Thank you.

A plan may impose a one-year marriage requirement (under ERISA § 205(B)(4) and ERISA § 205(f) , and Code Sec. 401(a)(11)(D) and Code Sec. 417(d)(1) ) under the survivor annuity rules, so that a participant's spouse has survivor rights in the participant's plan interest only if the participant and his spouse have been married for at least a year.

Where a plan's only mention of the "one-year requirement" related to the election of certain payment options and not to the designation of a beneficiary, the surviving spouse was entitled to the participant's benefits under the plan, even though the marriage lasted less than one year.

Enlow v. Fire Protection Systems Inc, (1991, MN App) 803 SW2d 148 , 13 EBC 1472 .

From the original post, it is not clear whether the participant is entitled to a distribution. Just "requesting a distribution" is not enough.

Agree with Pax. But if he IS entitled to a distribution, I would say the plan must specifically reference the one-year marriage requirement regarding beneficiary rights, if the plan administrator intends to use such a provision.

Yes?

Why is the 401(k) plan subject to the J&S rules? Is it a transferee plan?