Section 7. Safe harbor rules.

7.1. This section shall apply to a participant in a profit-sharing plan, and to any distribution , made on or after the first day of the first plan year beginning after December 31, 1988, from or under a separate account attributable solely to accumulated deductible employee contributions, as defined in section 72(o)(5)(B) of the Code, and maintained on behalf of a participant in a money purchase pension plan, (including a target benefit plan) if the following conditions are satisfied: (1) the participant does not or cannot elect

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payments in the form of a life annuity; and (2) on the death of a participant, the participant's vested account balance will be paid to the participant's surviving spouse, but if there is no surviving spouse, or if the surviving spouse has consented in a manner conforming to a qualified election, then to the participant's designated beneficiary. The surviving spouse may elect to have distribution of the vested account balance commence within the 90-day period following the date of the participant's death. The account balance shall be adjusted for gains or losses occurring after the participant's death in accordance with the provisions of the plan governing the adjustment of account balances for other types of distributions. This section 6 7 shall not be operativea pply with respect to a participant in a profit-sharing plan if the plan is a direct or indirect transferee of a defined benefit plan, money purchase plan, or a target benefit plan, or a stock bonus , or profit-sharing plan which is either subject to the survivor annuity requirements of Sections s ections 401(a)(11) and 417 of the Code, or offsets benefits under a plan subject to these requriementsr equirements. If this section 7 is operativea pplies, then the provisions of this article, other than section 8, shall be inoperative.

7.2. The participant may waive the spousal death benefit described in this section at any time provided that no such waiver shall be effective unless it satisfies the conditions of section 5.3 (other than the notification requirement referred to therein) that would apply to the participant's waiver of the qualified preretirement survivor annuity.

7.3 For purposes of this section 7, vested account balance shall mean, in the case of a money purchase pension plan or a target benefit plan, the participant's separate account balance attributable solely to accumulated deductible employee contributions within the meaning of section 72(o)(5)(B) of the Code. In the case of a profit-sharing plan, vested account balance shall have the same meaning as provided in section 5.7.

(Note to reviewer: Profit-sharing plans satisfying all of the requirements of LRM section 7.1 for a participant such that the plan is not required to provide a qualified joint and survivor annuity for the participant, but that do provide such annuity (even if the annuity is the normal form), may replace the qualified joint and survivor annuity with payment in a single-sum distribution form that is otherwise identical to such annuity in accordance with the requirements under Reg. § 1.411(d)-4 Q&A 2(e).)

Section 8. QLAC purchased with joint and survivor annuity benefits.

In the case of a QLAC purchased with joint and survivor benefits, a domestic relations order will not affect the permissibility of the joint and survivor annuity benefits so long as certain requirements are met as specified in section ______ (refer to the section of the plan which includes the sample plan language suggested by LRM #32).

Transitional Rules.

8.1. Any living participant not receiving benefits on August 23, 1984, who would

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otherwise not receive the benefits prescribed by the previous sections of this article must be given the opportunity to elect to have the prior sections of this article apply if such participant is credited with at least one hour of service under this plan or a predecessor plan in a plan year beginning on or after January 1, 1976, and such participant had at least 10 years of vesting service when he or she separated from service.

8.2. Any living participant not receiving benefits on August 23, 1984, who was credited with at least one hour of service under this plan or a predecessor plan on or after September 2, 1974, and who is not otherwise credited with any service in a plan year beginning on or after January 1, 1976, must be given the opportunity to have his or her benefits paid in accordance with section 7.4 of this article.

8.3. The respective opportunities to elect (as described in sections 8.1 and 8.2 above) must be afforded to the appropriate participants during the period commencing on August 23, 1984, and ending on the date benefits would otherwise commence to said participants.

8.4. Any participant who has elected pursuant to section 8.2 of this article and any participant who does not elect under section 8.1 or who meets the requirements of section 8.1 except that such participant does not have at least 10 years of vesting service when he or she separates from service, shall have his or her benefits distributed in accordance with all of the following requirements if benefits would have been payable in the form of a life annuity:

(a) Automatic joint and survivor annuity. If benefits in the form of a life annuity become payable to a married participant who:

(1) begins to receive payments under the plan on or after normal retirement age; or

(2) dies on or after normal retirement age while still working for the employer; or

(3) begins to receive payments on or after the qualified early retirement age; or

(4) separates from service on or after attaining normal retirement age (or the qualified early retirement age) and after satisfying the eligibility requirements for the payment of benefits under the plan and thereafter dies before beginning to receive such benefits; then such benefits will be received under this plan in the form of a qualified joint and survivor annuity, unless the participant has elected otherwise during the election period. The election period must begin at least 6 months before the participant attains qualified early retirement age and end not more than 90 days before the commencement of benefits. Any election hereunder will be in writing and may be changed by the participant at any time.

(b) Election of early survivor annuity. A participant who is employed after attaining the qualified early retirement age will be given the opportunity to elect, during the election period, to have a survivor annuity payable on death. If the participant elects the survivor annuity, payments under such annuity must not be less than the payments which

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would have been made to the spouse under the qualified joint and survivor annuity if the participant had retired on the day before his or her death. Any election under this provision will be in writing and may be changed by the participant at any time. The election period begins on the later of (1) the 90th day before the participant attains the qualified early retirement age, or (2) the date on which participation begins, and ends on the date the participant terminates employment.

(c) For purposes of this section 8.4:

(1) Qualified early retirement age is the latest of:

(i) the earliest date, under the plan, on which the participant may elect to receive retirement benefits,

(ii) the first day of the 120th month beginning before the participant reaches normal retirement age, or

(iii) the date the participant begins participation.

(2) Qualified joint and survivor annuity is an annuity for the life of the participant with a survivor annuity for the life of the spouse as described in section 5.4 of this article.

(Note to reviewer: Effective June 26, 2013, aA ny retirement plan qualification rule that applies because a participant is married must be applied with respect to a participant who is married to an individual of the same sex. See Notice 2015-86, 2015-52, I.R.B. 887, Notice 2014-19, Rev. Rul. 2013-17, and the decision in U.S. v Windsor , 570 U.S. 12 (2013). See the definition of spouse in Reg. § 301-7701-18. For example, a participant in a plan subject to the rules of § 401(a)(11) who is married to a same-sex spouse cannot waive a QJSA without obtaining spousal consent pursuant to § 417 . A retirement plan will not be treated as failing to meet the requirements of § 401(a) merely because it did not recognize the same-sex spouse of a participant as a spouse before June 26, 2013. A retirement plan will not be treated as failing to meet the requirements of § 401(a) merely because the plan, prior to September 16, 2013, recognized the same-sex spouse of a participant only if the participant was domiciled in a state that recognized same-sex marriages. However, effective September 16, 2013, a marriage of same-sex individuals must be recognized if it was validly entered into in a state whose laws authorize the marriage of two individuals of the same sex even if the married couple is domiciled in a state that does not recognize the validity of same-sex marriages.

A plan may recognize same sex-spouses as of a date prior to June 26, 2013. However, recognizing same-sex spouses for some or all purposes under a plan prior to June 26, 2013 may trigger requirements that are difficult to implement retroactively and may create unintended consequences. Therefore, except as provided in Q&A-3 of Notice 2014-19, no reliance will be afforded under the

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Opinion Letter issued to the plan with respect to the recognition of same-sex spouses prior to June 26, 2013, for various compliance purposes, such as whether benefits under the plan are nondiscriminatory. See, for example, Sections 7.01 and 7.02 of Rev. Proc. 2017-4In general, the deadline for adopting any amendments to reflect Windsor , Rev. Rul. 2013-17 and Notice 2014-19 was December 31, 2014. However, certain amendments could be made after December 31, 2014. See Q&As 3, 4 and 5 of Notice 2015-86.

See Notice 2015-86, 2015-52, I.R.B. 887. See also the Note to reviewer at LRM #49 for additional provisions affected by guidance interpreting the Windsor decision. )