38-776. Spousal waiver and consent

A. A member's current spouse may consent to one of the following requirements established in section 38-755 or 38-760 by signing and submitting an acknowledgement in a manner established by ASRS:

1. A change of beneficiary that provides the member's current spouse with less than fifty per cent of the member's account balance.

2. The member's retirement application that does not name the member's current spouse as a contingent annuitant of a joint and survivor annuity.

3. A change or rescission of the member's current spouse's contingent annuitant status.

B. If the member's current spouse is not capable of executing the acknowledgement because of an incapacitating mental or physical condition, a power of attorney or guardian may execute the acknowledgment on the current spouse's behalf.

C. The member may affirm in writing under penalty of perjury in a manner determined by ASRS that spousal consent is not required because of one of the following reasons:

1. The member is not married.

2. The member's current spouse has no identifiable community property interest in the member's benefits.

3. The member does not know, and has taken all reasonable steps to determine, the location of the member's current spouse.

4. The member has received notification from the board that a domestic relations order is acceptable pursuant to section 38-773 and that domestic relations order requires ASRS to pay benefits to an alternate payee that is contrary to the requirements of section 38-760.

5. Obtaining consent violates another law, an existing contract or a court order.

D. This section does not abrogate any community property laws of this state.

E. Payments or distributions made by ASRS in good faith reliance on the consent or waiver of a member's current spouse, the affirmations of a member contained in documents submitted to ASRS pursuant to this section or the member's indication to ASRS that the member is not married constitute a full and complete discharge and release of all liability of the board or ASRS, or both, respecting these payments or distributions.

F. If questions arise as to the distribution of a particular member's account, ASRS shall use reasonable judgment to distribute the account in a manner that is consistent with Arizona community property laws and interpretations of those laws.