17 Feb What happens to a pension when an ex-spouse dies?

Q. My ex-husband, who has remarried, is receiving pension benefits that were divided between us per court order. When the ex-husband passes away, what happens to the pension? Does the second wife have to continue to pay me my share of the pension benefits?
— Divorced

A. This all depends on the language of your divorce. Chances are that your ex isn’t directly paying the benefits to you.

So his death probably won’t have an impact on your benefits. Here’s why.

When someone divorces, a Qualified Domestic Relations Order (QDRO) dictates what happens to the pension, said Thomas Roberto, a family law attorney with Adinolfi, Lieberman, Burick, Falkenstein, Roberto & Molotsky in Haddonfield.

“Your share of the pension benefits would likely not be paid by your ex’s current spouse to you directly, and instead would continue to be paid to you through the pension plan,” he said.

He said under New Jersey law, the retirement assets of both spouses, including but not limited to pensions, are subject to equitable distribution in the event of divorce.

“Pensions and certain other types of retirement assets are normally divided between spouses by way of QDRO at the time of divorce,” Roberto said. “The language of the QDRO is guided by the terms of the marital settlement agreement or court order, which specifically addresses the manner in which the retirement assets are to be distributed between divorcing spouses.”

The QDRO then gets sent to the plan administrator for implementation at the time of retirement, he said.

If you are designated as the beneficiary of the pension, or if your settlement agreement, court order or QDRO specifically identifies your right to “survivor benefits,” then you should be able to continue receiving your share of the pension benefits after your ex-husband’s death, he said.

Alternatively, if the pension is a “separate interest” plan, which essentially means that the interests of the plan participant — here, your ex-husband — and the “alternate payee” — you, as the ex-spouse of the plan participant — are separated such that the alternate payee has an independent interest in the pension plan, this should permit you to continue receiving your share of the benefits, Roberto said.

Your ex-husband’s passing should not have any impact.

“The `separate interest’ status of the plan should also be confirmed in the settlement agreement or court order, as well as in the QDRO,” Roberto said. “If any of the above applies, you should continue to receive your share of your ex-husband’s pension benefits from the plan directly; your ex’s new spouse would likely not have any obligation — nor need — to pay you directly since this should all be done through the plan.”

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This story was originally published on Feb. 17, 2020.

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