QJSA Waiver
(Spousal Consent) (Defined Benefit Plan)

Summary

This is a template used to consent to the waiver of a qualified joint and survivor annuity (QJSA) form of benefit in a defined benefit plan by the spouse of a plan participant who is electing a different form of benefit than the mandatory default QJSA (or a qualified optional survivor annuity) in accordance with the requirements under I.R.C. § 417(a). This template contains practical guidance, drafting notes, and alternate and optional clauses. Use this template with the QJSA Notice (Defined Benefit Plan), which explains the QJSA benefit to plan participants as required under I.R.C. § 417(a)(3)(A), and otherwise as part of the plan's benefit election procedures. The QJSA rules (and rules regarding qualified preretirement survivor annuities (QPSAs)).apply to all defined benefit plans (including cash balance plans), money purchase pension plans, and certain defined contribution plans. I.R.C. § 401(a)(11)(A); Treas. Reg. § 1.401(a)-20, Q&A-3; ERISA § 205(b) (29 U.S.C. § 1055(b)). The QJSA must be the default form of benefit for these plans and be provided as a joint-and-survivor annuity to the participant and the participant's spouse as the survivor beneficiary, with the survivor annuity percentage being between 50% and 100% of the participant's life annuity. I.R.C. §§ 401(a)(11), 417(b); Treas. Reg. §§ 1.401(a)-20, Q&A-16, 1.401(a)-(11); ERISA § 205(d)(1) (29 U.S.C. § 1055(d)(1)). Generally, each plan subject to the QJSA rules must provide a written explanation of the QJSA to participants no less than 30 days and no more than 180 days prior to the participant's annuity starting date, containing the following information: • The terms and conditions of the QJSA • The participant's right to make, and the effect of, an election under I.R.C. § 417(a)(1) to waive the joint and survivor annuity form of benefit (and to select an optional form of benefit) • The rights of the participant's spouse to consent to a participant's election to waive the QJSA • The right to revoke, and the effect of, a revocation of an election • A description of each optional form of benefit available under the plan, including the qualified optional survivor annuity (QOSA), which is now a required optional form of benefit for plans subject to the QJSA rules • A description of the eligibility conditions for each optional form of benefit • A description of the financial effect of electing each optional form of benefit (i.e., the amounts and timing of payments to the participant under the form of benefit during the participant's lifetime, and the amounts and timing of payments after the participant's death) • In the case of a defined benefit plan, a description of the relative value of each optional form of benefit compared to the value of the QJSA • A description of any other material features of each optional form of benefit I.R.C. § 417(a)(3)(A), (6)(A). See also Treas. Reg. § 1.401(a)–11(c)(1); Treas. Reg. § 1.417(a)(3)-1(a), (b)(2) (c), (d); Treas. Reg. § 1.417(e)-1(b)(3)(ii); I.R.S. Notice 2007-7, Section VIII; I.R.S. Notice 2008-30, Section III; Prop. Treas. Reg. § 1.417(e)-1(b)(3)(ii) (73 Fed. Reg. 59,575, 59,577 (Oct. 9, 2008)). The survivor annuity rules permit a participant to waive a QJSA to elect another form of retirement benefit and to waive the right to a QPSA, but only if the participant's spouse signs a consent form. This consent template must acknowledge the effect of the waiver and be witnessed by a plan representative or notary public. I.R.C. § 417(a)(2)(A). This template is designed to satisfy the spousal consent requirement and is based upon a model consent provided in I.R.S. Notice 97-10. Historically, the spouse needed to sign a QJSA consent waiver in the physical presence of the plan representative or notary, but proposed regulations, which may be relied upon pending finalization, provide for alternative procedures for remote witnessing via an electronic system using audio-video communications. See Prop. Treas. Reg. § 1.401(a)-21(d)(6) (87 Fed. Reg. 80,501 (Dec. 30, 2022)). Temporary relief from the physical presence requirement that was available during the period from January 1, 2020, through December 31, 2022, due to the novel coronavirus (COVID-19) pandemic has expired. See I.R.S. Notice 2020-42, most recently extended by I.R.S. Notice 2022-27. However, the proposed regulations noted above largely adopt the same procedures employed in the Notice guidance with an additional recordkeeping requirement. A failure to obtain spousal consent where required may be corrected, if eligible, under the IRS Employee Plans Compliance Resolution System (EPCRS). See IRS, Fixing Common Plan Mistakes - Failure to Obtain Spousal Consent and EPCRS Correction Rules and Procedures. For a discussion of the QJSA/QOSA/QPSA rules, see Beneficiary Designations in Qualified Retirement Plans — Survivor Annuity Rules. For a discussion about the spousal consent requirements, see Beneficiary Designations in Qualified Retirement Plans — Spousal Consent under the Survivor Annuity Rules and Tax Planning for Retirees § 2.11. For a template notice explaining the QJSA and other forms of benefit under the plan, see QJSA Notice (Defined Benefit Plan). For similar templates related to a QPSA, see QPSA Notice (Defined Benefit Plan) and QPSA Waiver (Spousal Consent) (Defined Benefit Plan). For a full listing of key content covering retirement plan notification requirements, see ERISA Retirement Plan Notices Resource Kit.