Quick Hits
- The IRS and Treasury Department confirmed that most employer-sponsored retirement plans generally have until December 31, 2026, to adopt discretionary amendments implementing SECURE and SECURE 2.0 provisions, with later deadlines for collectively bargained, governmental, and public school 403(b) plans.
- Required amendments, and future guidance relating to discretionary amendments that have already been adopted, may have later deadlines tied to future IRS Required Amendments (RA) lists.
- The IRS and Treasury indicated final regulations are forthcoming with respect to automatic enrollment, long-term part-time workers, and required minimum distributions.
Background
Generally, the timing for adopting retirement plan amendments depends on whether the amendment is discretionary or required. For optional plan design changes, the amendment is generally due by the last day of the plan year in which the change is implemented. In contrast, amendments required to maintain a plan’s tax-qualified status are subject to a remedial amendment period and generally must be adopted by the last day of the second calendar year following the issuance of the RA list featuring the required change.
The IRS typically adds items to an RA list after regulations are issued relating to that amendment. However, the IRS has the authority to add an item in other circumstances, such as when a statutory change is enacted but no implementation guidance is expected.
Looming SECURE Act and SECURE 2.0 Deadlines
The SECURE Act and SECURE 2.0 included required plan changes and optional plan design provisions.
Examples of discretionary SECURE and SECURE 2.0 amendments include those implementing student-loan-payment matching contributions, emergency savings accounts, Roth employer matching and nonelective contributions, domestic abuse victim distributions, terminally ill participant distributions, qualified long-term-care distributions, and the saver’s match. Guidance issued in 2024 indicated that, for most plans, the current SECURE and SECURE 2.0 discretionary amendment deadline is December 31, 2026. Collectively bargained plans generally have until December 31, 2028, and governmental plans and public school 403(b) plans generally have until December 31, 2029.
Examples of required SECURE and SECURE 2.0 amendments include changes to required minimum distributions, the Roth catch-up contribution mandate, long-term-part-time employee eligibility requirements, and mandatory automatic enrollment. Guidance has been issued on many of those requirements, but questions remain. Most plans have been working to adopt amendments for the required provisions at the same time as discretionary changes (that is, by December 31, 2026, for most plans).
Later Amendment Deadlines
The September 2026 edition of the IRS’s Employee Plans clarified that the applicable amendment deadlines are the later RA list deadlines. It notes that changes that cannot reasonably be reflected in plan language without guidance, or for which the Treasury Department and IRS expect to issue guidance, will not appear on an RA list until the guidance is issued and applicable. This gives plan sponsors awaiting guidance additional time to amend their plans.
More interestingly, perhaps, the guidance also extends the discretionary plan amendment deadline if future guidance is issued regarding the discretionary provision that makes its way on the RA list. Specifically, if additional guidance concerning the provision or its implementation is issued after the discretionary amendment is adopted, the plan has the longer remedial amendment period to adopt that change, rather than the much earlier deadline that would ordinarily apply. Thus, an amendment addressing the discretionary provisions implementing the guidance must be adopted by the end of the second plan year after the guidance is listed on the RA list.
Promise of Future Guidance
The Treasury Department and the IRS expect to issue final regulations with respect to the following provisions: (1) automatic enrollment requirements imposed by section 101 of SECURE 2.0, (2) long-term part-time requirements imposed by section 125 of SECURE and section 112 of SECURE 2.0, and (3) required minimum distribution requirements imposed by SECURE and SECURE 2.0 provisions that have not already appeared on an RA list. These provisions will be included on a future RA list after a final regulation becomes applicable.
Final regulations are generally not expected to be applicable any earlier than the plan year commencing six months following the issuance of such final regulations. For example, if final regulations are issued for a SECURE 2.0 provision on June 30, 2027, then such final regulations would not become applicable until the 2028 plan year.
Likewise, the Roth catch-up requirements under section 603 of the SECURE 2.0 Act are expected to appear on the 2027 RA list (when the final Roth catch-up regulations become applicable), so the deadline for adopting those requirements will be December 31, 2029.
Next Steps
Employers may wish to use the additional time to:
- inventory SECURE Act and SECURE 2.0 changes already implemented in operation, distinguishing discretionary design changes from required compliance updates;
- identify amendments that may depend on future IRS guidance or future RA lists;
- coordinate with a legal team, recordkeepers, third-party administrators, and document providers on amendment responsibility and timing;
- consider whether interim participant communications may help reduce confusion before formal summary plan description or summary of material modification updates are required; and
- evaluate whether amending the plan before the IRS deadline may help simplify plan documents, communications, and administration.
Ogletree Deakins’ Employee Benefits and Executive Compensation group will continue to monitor developments and will post updates on the Employee Benefits and Executive Compensation blog as additional information becomes available.
Katrina M. Clingerman is a shareholder in Ogletree Deakins’ Indianapolis office.
Carly E. Grey is a shareholder in Ogletree Deakins’ Washington, D.C., office.
David S. Rosner is a shareholder in Ogletree Deakins’ Washington, D.C., office.
This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.
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