08 Dec My ex died. Can I get back her part of my pension?

Q. My ex-wife has died after a long term-illness. She was receiving 40% of my pension. Does that 40% come back to me now?
— Still here

A. There’s no certain answer here without knowing more about the pension plan and your divorce agreement.

It would be important to know how your pension plan is held — privately, publicly, through the government or the military, etc. — and whether you were in pay status at the time of your divorce, or if you had yet to elect a form of benefit payment at that time, said Jeralyn Lawrence, a family law attorney with Lawrence Law in Watchung.

Generally, she said, if your pension was divided by way of Qualified Domestic Relations Order (QDRO) resulting in your ex-wife receiving 40% of your pension, the QDRO will probably have language describing whether her share goes back to you, is passes to her estate or is forfeited to the pension plan.

Your pension’s summary plan description might provide some additional information.

But let’s go over some examples.

Let’s assume that as part of your divorce from your ex-wife, your pension was divided by way of QDRO such that your ex-wife received 40% of your pension benefit, Lawrence said.

Generally, QDROs are used either to provide support payments to the alternate payee — such as your ex-wife — or to divide marital property in the dissolution of a marriage, Lawrence said. These differing intents often result in different methods of drafting such a QDRO.

One approach that is used in some QDROs is meant to “split” the actual benefit payments to a participant under the plan to give the alternate payee a portion of each payment, she said. This approach to dividing retirement benefits is often called the “shared payment” approach.

Under this approach, the alternate payee will not receive any payments unless the participant receives a payment or is already in pay status — this approach must be used when a participant is already in pay status,” she said. “A QDRO under this approach must specify the amount or percentage of the participant’s benefit payments that is assigned to the alternate payee and must specify when the alternate payee’s right to share the payments commence and terminate.”

If you were in pay status at the time of your divorce from your ex-wife, and you were receiving benefit payments as a single life annuity whereby payments would terminate at the time of your death, your ex-wife’s share would revert to either you or the plan when she predeceased you — unless the plan permitted her the right to transfer her benefit to a contingent alternate payee under the specific language of the QDRO, Lawrence said.

Alternatively, QDROs that intend to divide a retirement benefit as part of the marital property upon divorce generally divide the participant’s retirement benefit — rather than just the payments — into two separate portions with the goal of giving the alternate payee a separate right to receive a portion of the retirement benefit to be paid at a time and in a form different from that chosen by the participant.

This approach to dividing a retirement benefit is often called the “separate interest” approach, Lawrence said, noting that this method is typically used when the QDRO is in place before the participant’s benefits are in pay status.

“A QDRO under this approach must specify the amount or percentage of the participant’s retirement benefit to be assigned to the alternate payee and the number of payments or period to which the benefit applies,” she said.

If you were not in pay status at the time of your divorce, and had not elected a form of benefit payment upon retirement, your ex-wife would have the ability to elect a form of benefit payment applicable to her share of the benefit, as permitted by the plan, Lawrence said.

For example, if a plan offered you the option of receiving a “period certain annuity” which consists of monthly payments for a definite period of time (e.g., 15-years), your ex-wife would have also been permitted to elect a “period certain annuity” with respect to his or her share of benefits, she said.

“If she were to pass away before the expiration of the guaranteed period, the plan would continue making payments to her designated beneficiary,” Lawrence said. “In this sense, your ex-wife would enjoy rights similarly afforded to you namely, the right to designate a third party to receive unpaid benefits upon her death. In this event, your ex-wife’s share may not revert to you.”

It is important to notify your plan of your ex-spouse’s passing so that the plan may act accordingly, Lawrence said. In the event you are unable to get a copy of your QDRO or you don’t recall whether a QDRO was entered, you should speak to the plan administrator or an experienced family lawyer who can attempt to get a copy for you.

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This story was originally published on Dec. 8, 2020.

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