§ 417. Definitions and special rules for purposes of minimum survivor annuity requirements
(a)
Election to waive qualified joint and survivor annuity or qualified preretirement survivor annuity
(1)
In general
(A)
under the plan, each participant—
(i)
may elect at any time during the applicable election period to waive the qualified joint and survivor annuity form of benefit or the qualified preretirement survivor annuity form of benefit (or both),
(2)
Spouse must consent to election
Each plan shall provide that an election under paragraph (1)(A)(i) shall not take effect unless—
(A)
(B)
it is established to the satisfaction of a plan representative that the consent required under subparagraph (A) may not be obtained because there is no spouse, because the spouse cannot be located, or because of such other circumstances as the Secretary may by regulations prescribe.
Any consent by a spouse (or establishment that the consent of a spouse may not be obtained) under the preceding sentence shall be effective only with respect to such spouse.
(3)
Plan to provide written explanations
(A)
Explanation of joint and survivor annuity
Each plan shall provide to each participant, within a reasonable period of time before the annuity starting date (and consistent with such regulations as the Secretary may prescribe), a written explanation of—
(i)
the terms and conditions of the qualified joint and survivor annuity and of the qualified optional survivor annuity,
(B)
Explanation of qualified preretirement survivor annuity
(i)
In general
Each plan shall provide to each participant, within the applicable period with respect to such participant (and consistent with such regulations as the Secretary may prescribe), a written explanation with respect to the qualified preretirement survivor annuity comparable to that required under subparagraph (A).
(ii)
Applicable period
For purposes of clause (i), the term “applicable period” means, with respect to a participant, whichever of the following periods ends last:
(I)
The period beginning with the first day of the plan year in which the participant attains age 32 and ending with the close of the plan year preceding the plan year in which the participant attains age 35.
In the case of a participant who separates from service before attaining age 35, the applicable period shall be a reasonable period after separation.
(4)
Requirement of spousal consent for using plan assets as security for loans
Each plan shall provide that, if section
401
(a)(11) applies to a participant when part or all of the participant’s accrued benefit is to be used as security for a loan, no portion of the participant’s accrued benefit may be used as security for such loan unless—
(5)
Special rules where plan fully subsidizes costs
(A)
In general
The requirements of this subsection shall not apply with respect to the qualified joint and survivor annuity form of benefit or the qualified preretirement survivor annuity form of benefit, as the case may be, if such benefit may not be waived (or another beneficiary selected) and if the plan fully subsidizes the costs of such benefit.
(B)
Definition
For purposes of subparagraph (A), a plan fully subsidizes the costs of a benefit if under the plan the failure to waive such benefit by a participant would not result in a decrease in any plan benefits with respect to such participant and would not result in increased contributions from such participant.
(6)
Applicable election period defined
For purposes of this subsection, the term “applicable election period” means—
(A)
in the case of an election to waive the qualified joint and survivor annuity form of benefit, the 180-day period ending on the annuity starting date, or
(B)
in the case of an election to waive the qualified preretirement survivor annuity, the period which begins on the first day of the plan year in which the participant attains age 35 and ends on the date of the participant’s death.
In the case of a participant who is separated from service, the applicable election period under subparagraph (B) with respect to benefits accrued before the date of such separation from service shall not begin later than such date.
(7)
Special rules relating to time for written explanation
Notwithstanding any other provision of this subsection—
(A)
Explanation may be provided after annuity starting date
(i)
In general
A plan may provide the written explanation described in paragraph (3)(A) after the annuity starting date. In any case to which this subparagraph applies, the applicable election period under paragraph (6) shall not end before the 30th day after the date on which such explanation is provided.
(ii)
Regulatory authority
The Secretary may by regulations limit the application of clause (i), except that such regulations may not limit the period of time by which the annuity starting date precedes the provision of the written explanation other than by providing that the annuity starting date may not be earlier than termination of employment.
(B)
Waiver of 30-day period
A plan may permit a participant to elect (with any applicable spousal consent) to waive any requirement that the written explanation be provided at least 30 days before the annuity starting date (or to waive the 30-day requirement under subparagraph (A)) if the distribution commences more than 7 days after such explanation is provided.
(b)
Definition of qualified joint and survivor annuity
For purposes of this section and section
401
(a)(11), the term “qualified joint and survivor annuity” means an annuity—
(1)
for the life of the participant with a survivor annuity for the life of the spouse which is not less than 50 percent of (and is not greater than 100 percent of) the amount of the annuity which is payable during the joint lives of the participant and the spouse, and
Such term also includes any annuity in a form having the effect of an annuity described in the preceding sentence.
(c)
Definition of qualified preretirement survivor annuity
(1)
In general
Except as provided in paragraph (2), the term “qualified preretirement survivor annuity” means a survivor annuity for the life of the surviving spouse of the participant if—
(A)
the payments to the surviving spouse under such annuity are not less than the amounts which would be payable as a survivor annuity under the qualified joint and survivor annuity under the plan (or the actuarial equivalent thereof) if—
(i)
in the case of a participant who dies after the date on which the participant attained the earliest retirement age, such participant had retired with an immediate qualified joint and survivor annuity on the day before the participant’s date of death, or
(B)
under the plan, the earliest period for which the surviving spouse may receive a payment under such annuity is not later than the month in which the participant would have attained the earliest retirement age under the plan.
In the case of an individual who separated from service before the date of such individual’s death, subparagraph (A)(ii)(I) shall not apply.
(2)
Special rule for defined contribution plans
In the case of any defined contribution plan or participant described in clause (ii) or (iii) of section
401
(a)(11)(B), the term “qualified preretirement survivor annuity” means an annuity for the life of the surviving spouse the actuarial equivalent of which is not less than 50 percent of the portion of the account balance of the participant (as of the date of death) to which the participant had a nonforfeitable right (within the meaning of section
411
(a)).
(d)
Survivor annuities need not be provided if participant and spouse married less than 1 year
(1)
In general
Except as provided in paragraph (2), a plan shall not be treated as failing to meet the requirements of section
401
(a)(11) merely because the plan provides that a qualified joint and survivor annuity (or a qualified preretirement survivor annuity) will not be provided unless the participant and spouse had been married throughout the 1-year period ending on the earlier of—
(2)
Treatment of certain marriages within 1 year of annuity starting date for purposes of qualified joint and survivor annuities
For purposes of paragraph (1), if—
(B)
the participant and the participant’s spouse in such marriage have been married for at least a 1-year period ending on or before the date of the participant’s death,
such participant and such spouse shall be treated as having been married throughout the 1-year period ending on the participant’s annuity starting date.
(e)
Restrictions on cash-outs
(1)
Plan may require distribution if present value not in excess of dollar limit
A plan may provide that the present value of a qualified joint and survivor annuity or a qualified preretirement survivor annuity will be immediately distributed if such value does not exceed the amount that can be distributed without the participant’s consent under section
411
(a)(11). No distribution may be made under the preceding sentence after the annuity starting date unless the participant and the spouse of the participant (or where the participant has died, the surviving spouse) consents in writing to such distribution.
(2)
Plan may distribute benefit in excess of dollar limit only with consent
If—
(A)
the present value of the qualified joint and survivor annuity or the qualified preretirement survivor annuity exceeds the amount that can be distributed without the participant’s consent under section
411
(a)(11), and
(B)
the participant and the spouse of the participant (or where the participant has died, the surviving spouse) consent in writing to the distribution,
the plan may immediately distribute the present value of such annuity.
(3)
Determination of present value
(A)
In general
For purposes of paragraphs (1) and (2), the present value shall not be less than the present value calculated by using the applicable mortality table and the applicable interest rate.
(B)
Applicable mortality table
For purposes of subparagraph (A), the term “applicable mortality table” means a mortality table, modified as appropriate by the Secretary, based on the mortality table specified for the plan year under subparagraph (A) of section
430
(h)(3) (without regard to subparagraph (C) or (D) of such section).
(C)
Applicable interest rate
For purposes of subparagraph (A), the term “applicable interest rate” means the adjusted first, second, and third segment rates applied under rules similar to the rules of section
430
(h)(2)(C) for the month before the date of the distribution or such other time as the Secretary may by regulations prescribe.
(D)
Applicable segment rates
For purposes of subparagraph (C), the adjusted first, second, and third segment rates are the first, second, and third segment rates which would be determined under section
430
(h)(2)(C) if—
(i)
section
430
(h)(2)(D) were applied by substituting the average yields for the month described in subparagraph (C) for the average yields for the 24-month period described in such section,
(ii)
section
430
(h)(2)(G)(i)(II) were applied by substituting “section
417
(e)(3)(A)(ii)(II)” for “section
412
(b)(5)(B)(ii)(II)”, and
(f)
Other definitions and special rules
(3)
Earliest retirement age
The term “earliest retirement age” means the earliest date on which, under the plan, the participant could elect to receive retirement benefits.
(4)
Plan may take into account increased costs
A plan may take into account in any equitable manner (as determined by the Secretary) any increased costs resulting from providing a qualified joint or survivor annuity or a qualified preretirement survivor annuity.
(g)
Definition of qualified optional survivor annuity
(1)
In general
For purposes of this section, the term “qualified optional survivor annuity” means an annuity—
(A)
for the life of the participant with a survivor annuity for the life of the spouse which is equal to the applicable percentage of the amount of the annuity which is payable during the joint lives of the participant and the spouse, and
Such term also includes any annuity in a form having the effect of an annuity described in the preceding sentence.