177 / 507
Chapter 3: Marital Matters
177
the participant’s death. GCM 39858 involved a spousal disclaimer of REA-guaranteed
benefits and does not mention any deadline for such a disclaimer earlier than nine months
after the participant’s death, holding that: “There is no evidence that Congress intended to
preclude a spouse from disclaiming or renouncing benefits under a qualified plan payable
after the participant’s death.”
Since the statutory exemption is limited to REA-guaranteed benefits, and many plans
actually grant the spouse
more
rights than REA guarantees (see
¶ 3.4.05 ), a spousal waiver
of such excess benefits
could be
treated as a gift-taxable transfer. There have been no cases
or rulings on this question.