As the COVID-19 pandemic drags on, administrators of defined benefit pension plans continue to field questions about the notary requirement related to certain participant and spousal elections. For qualified retirement plans subject to the qualified joint and survivor annuity rules (such as defined benefit pension plans), an alternative form of payment may be selected by a participant if the participant’s spouse consents in writing and the spouse’s signature is witnessed in the physical presence of a plan representative or a notary public. With ongoing social distancing protocols adopted by many states during the pandemic, the “physical presence” requirement presents a challenge. In Notice 2021-3, the IRS provided temporary relief related to the physical presence requirement. According to the Notice, the physical presence requirement is deemed satisfied if a remote notarization process is used, provided the parties use live audio-video technology and comply with state law requirements applicable to remote notarization. In addition, the guidance allows for a process by which a plan representative may remotely witness a signature, rather than a notary public, as follows: the individual signing must present valid photo identification during a live audio-video connection; the connection must allow for “real-time” direct interaction between the parties; on the same day, the individual signing must send, by fax or email, a legible copy of the signed document to the plan representative; the plan representative must then acknowledge the signature and transmit the acknowledgement back to the individual. In Notice 2021-40, the IRS has provided that this temporary relief remains available until June 30, 2022.

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Photo of Stephen Kelly Stephen Kelly

Stephen Kelly focuses his practice on construction and development, including contract drafting and negotiating and construction-related litigation. Steve, Of Counsel in the Stoel Rives’ Construction and Design group, has represented private and public owners, developers, contractors and designers in many facets of development…

Stephen Kelly focuses his practice on construction and development, including contract drafting and negotiating and construction-related litigation. Steve, Of Counsel in the Stoel Rives’ Construction and Design group, has represented private and public owners, developers, contractors and designers in many facets of development and construction law. He has been listed in Best Lawyers in America® in the practice area of Native American Law from 2012 to 2015 and was selected by Best Lawyers® as Portland Native American Law Lawyer of the Year for 2013.