19 Jan My ex died. How do I get his pension?

Q. My spouse and I divorced in 2010 after being married for 17 years. He recently died. The divorce decree indicates I’m entitled to his pension. What happens now?
— Divorced

A. Thank you for your question.

What happens next is based on the language of your divorce settlement.

It should contain terms providing for how your respective retirement assets are, or were, to be divided upon your divorce in 2010 and what portion of these accounts are subject to equitable distribution, said Jeralyn Lawrence, a family law attorney with Lawrence Law in Watchung.

Assuming that such provisions exist, your late ex-husband’s passing does not necessarily eliminate that to which you are entitled under the terms of your divorce decree, she said.

Lawrence said if your divorce decree further instructed you to have a Qualified Domestic Relations Order (QDRO) prepared and facilitated to effectuate the division of your late ex-husband’s pension, and the QDRO was prepared, entered and served upon the pension plan, it probably addresses what happens upon your ex-husband’s death.

It’s possible his death could trigger termination of the benefit or it’s possible it could continue, she said.

“The availability of pension payouts following a pension participant’s death are predominantly determined by the terms of the plan itself,” she said.

It’s important to note that pension plans are not bound by the terms of your divorce decree without a QDRO instructing them to divide these assets, Lawrence said.

Therefore, you shouldn’t assume any of this will happen automatically, she said.

“The QDRO process is a critical one to assure that you will each receive your share of retirement benefits as stipulated in your divorce decree,” she said. “In the absence of a QDRO, it may be possible that the terms of your divorce decree are explicit and clear enough to direct the plan on the division of retirement assets, provided the plan will accept the divorce decree in lieu of a QDRO.”

You should speak to an experienced family law attorney who can help you review the divorce decree and what your next steps should be.

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This story was originally published on Jan. 19, 2022.

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