Participant's husband has disappeared to South America and she has been unable to serve him with divorce papers. Can she and how would she name a nonspouse beneficary to her 401(k) plan?

Only a US court can grant her a divorce -- not sure of name/process for that when a spouse abandons another. She needs to get a court order saying she is or isn't married. Until she is divorced, then spouse remains primary beneficiary.

Some (not all) plans permit a qualified election without a spouse's consent if "it is established to the [plan administrator's] satisfaction ... that the [spouse's] consent ... [can't] be obtained ... because the spouse cannot be located[.]" ERISA 205©(2)(B).

Although ERISA doesn't expressly require a court order as a condition of this exception, a careful plan administrator would not rely a participant's statement that his or her spouse can't be located, and instead would want clear and reliable independent evidence. In the absence of a divorce (or a court order of abandonment), a plan administrator that performs to ERISA's prudent-expert standard of care might insist on a Federal court order. (The testimony of an expert investigator explaining how he or she was unable to locate a person might support a court's finding.) Alternatively, a participant might find that it's easier to get a State court's order of divorce or abandonment.

An excellent reminder to plan administrators, Peter, regarding careful, prudent handling of this kind of case.

And easy to administer, too, unless the participant dies with an AWOL spouse.