Scrivener’s error is a mistake made by someone who is writing or copying something down, like a typo or a misspelling. It’s also a losing argument for most mistakes in a retirement plan document.
Intent is a nice idea. It’s a reminder of where you want to spend your attention and energy. The problem with intent is that if you had intended to exclude certain classifications of employees and the plan document didn’t do that, no time machine can make you fix that error. People who should have been excluded are included if the plan document was quiet on their ineligibility. That means you will have to make corrective contributions to employees you wanted to exclude from 401(k) participation. A retroactive amendment to exclude them, won’t pass muster with the Internal revenue Service and it certainly won’t pass muster with the Department of Labor.
