DIVIDING A RETIREMENT PLAN AFTER THE DEATH OF THE MEMBER SPOUSE

             

 

Judgments for dissolution of marriage generally provide that the community interest in each spouse’s retirement plan earned during marriage is to be divided by a Qualified Domestic Relations Order (QDRO), unless the parties waive such interest, or the non-member spouse’s share is offset against another property interest.  Often the Judgment will appoint a QDRO specialist to prepare the Order(s) dividing the retirement plans.  QDRO(s) must meet strict requirements under the Employee Retirement Income Security Act of 1974 (ERISA) and can take 6-10 months to complete.

Unique and complex issues arise when the member spouse (employee who earned the retirement) dies after the Judgment for Dissolution of Marriage is entered, but before the QDRO is entered.

The Court has jurisdiction to enforce a Judgment for Dissolution of Marriage after one party dies. Family Code Section 2337(g); Marriage of Hilke;  McClenny v. Superior Court (1964); Kinsler v. Superior Court (1981).  Furthermore, Family Law judgments remain enforceable until paid.  Family Code Section 291.

The Court has jurisdiction to enter a QDRO to a date prior to a Party’s death where the Domestic Relations Order substantially complies with ERISA’s specificity requirements for a QDRO.  The ERISA requirements include:  (1) the Order must state the name and mailing address of both the participant and the alternate participant and the alternate payees; (2) the amount or percentage of the participant’s benefit to be paid to each alternate payee; (3) the number of payments to which the order applies; and (4) the plan to which the order applies.

Additionally, ERISA provides for further state court proceedings after the initial Domestic Relations Order is issued to clarify and fix and technical defects in the original Domestic Relations Order.  For example, if the mailing address of the alternate payee is not stated in the Judgment because the Notice of Entry of Judgment states the attorney’s address, the information can be obtained from that party’s attorney.  Additionally, the non-member spouse’s interest stated as “one-half of the community interest” in the retirement is sufficient, as this amount can be determined. However, where the Judgment simply reserves jurisdiction over dividing the retirement accounts, such an order does not meet the ERISA specificity requirements.

The grace period for entering a QDRO after the members death (180 days) is further limited depending on whether the member spouse was still working, or had already retired at the time of death.  In the latter case,  a Joint and Survivor Annuity vests in the current spouse upon the death of the member spouse.  This means that a former spouse may be precluded from enforcing a Judgment as to his or her community interest in the retirement if a QDRO was not entered before the member’s death.

In order to avoid additional litigation expense and possible loss of benefits, the best course of action is to proceed with entry of a QDRO without delay.

Do you want to hear more about the latest information about retirement issues and what it means to file a QDRO in divorce? If you have questions about divorce information, please contact our office to schedule a consultation. The Law Office of Bawden & Kochis also handle legal issues regarding adoption, annulment, mediation, child custody, child and spousal support, community property, visitation, separation, and domestic violence as well as pre-marital and post-marital agreements. Telephone (909)792-0222, or email us at Officestaff@Richardbawdenlaw.com.

When he is not practicing law, Robert enjoys traveling, especially to the Caribbean and to Hawaii. He also claims the Lakers as his favorite sports team, loves Italian food, and often relaxes with a guitar.