23 Jan Can I get my ex’s pension after his death?

Q. I was married for 19 years. During that time I was a stay-at-home wife with children. We divorced and neither of us remarried. He died two years ago. Am I entitled to his pension?
— Unsure

A. You can answer just about every question about divorce and pensions with just two words: it depends.

And no two divorces are identical.

It depends on what your divorce decree states; it depends on the wording of the Qualified Domestic Relations Order (QDRO) and if it was approved by the plan administrator; it depends on the specifics of the pension plan, said Amber Leach, a certified divorce financial analyst with AXA Advisors/R.I.C.H. Planning Group in Morristown.

Leach said your divorce decree should state the percentage or amount of the pension assets you are to receive, usually upon the earliest age allowable under the pension’s rules to receive benefits.

“It is important that during your divorce process to have explored what you are entitled to upon his early death,” she said.

Then every pension plan is different.

“You may find that even though your divorce decree states you should get a portion of his pension, the pension plan does not pay out survivor benefits,” she said. “The benefits stop upon death.”

Hopefully, this was something addressed in your divorce decree.

Even if your divorce decree states you are entitled to a portion of his pension benefits, then it also depends on your QDRO, Leach said.

“It depends on how well your QDRO was written and if it was approved by the pension plan’s administrator in writing,” she said. “The QDRO is key to stating what happens to the benefits if your ex-spouse dies before or after receiving benefits.”

If the pension does not pay survivor benefits outside of a current spouse, then it does not matter what your divorce decree or QDRO state, Leach said. No court order will force a pension plan to pay benefits outside of the normal allowances under the plan, she said, and that’s why approval from the plan administrator in writing is crucial to making sure that you understand exactly what you are entitled to after the divorce and after his death.

You didn’t ask this, but Social Security, however, is different.

“What is stated in your divorce decree does not matter and no QDRO is needed. What matters is if you qualify under the terms of Social Security survivor spousal benefits,” she said. “In seeking the answer to anything pertaining Social Security you should go straight to the source.”

Note that only Social Security can check your records to determine any possible benefit, but because you were married for more than 10 years and have not remarried, you may be entitled to receive benefits as a surviving divorced spouse.

Your ex-husband will have had to worked long enough to qualify for benefits, Leach said.

If he has enough credits, as a surviving divorced spouse with a marriage that lasted 10 years or more, you could get the benefits as a widow or widower, she said.

“A widow or widower can receive full benefits at full retirement age or reduced benefits as early as age 60 or age 50 if disabled,” she said. “If you are taking care of your ex-husband’s child who is under age 16 or disabled and you haven’t remarried, then you can start receiving benefits at any age.”

Leach said if your ex-spouse qualifies for a benefit but did not apply for it, if you’re divorced for at least two continuous years, you may apply for the benefits.

However, you cannot apply for survivor benefits online. You will need to call or visit your local Social security office.

The fact that you have not remarried helps your eligibility. If you were to remarry before age 60, or age 50 if disabled, then your eligibility may be affected. If you

remarry after age 60, it will not affect your benefits, Leach said.

The specifics for a surviving divorced spouse can be found here.

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This story was originally published on Jan. 23, 2020.

NJMoneyHelp.com presents certain general financial planning principles and advice, but should never be viewed as a substitute for obtaining advice from a personal professional advisor who understands your unique individual circumstances.