29 Jun My ex died. Can I still get half his pension?

Q. If I am entitled to half of my ex-spouse’s pension in the divorce agreement and I am named Alternate Payee in the QDRO, which has not been sent to the plan administrator yet, but my ex dies before he retires, do I get half, all or none of the pension?
— Divorced

A. This is a very fact-specific question, but here’s what you should consider generally.

Typically, for an ex-spouse to receive half a share of retirement benefits amassed in the name of the former spouse, the plan administrator will require receipt of a Qualified Domestic Relations Order, known as a QDRO.

A QDRO should be filed as soon as possible after your divorce agreement is finalized, said Kenneth White, a certified matrimonial attorney with Shane and White in Edison.

“Failure to timely secure a QDRO and serve the same upon the plan administrator can have many negative consequences,” he said.

For example, a participant may withdraw funds from a retirement plan or even take a loan from the plan before the alternate payee’s share is preserved, he said.

“Similarly, the participant may have been required to elect certain options such as a survivor benefit before plan goes into pay status, but if the QDRO is not filed putting the plan administrator on notice the participant may elect a different option without a survivor benefit or perhaps name an alternate surviving `spouse’ if the participant had remarried, he said.

Additionally, if the participant dies prior to the QDRO being served, the ability to collect benefits may terminate with the death of the participant, White said.

“While the death of the participant before the QDRO is filed or served on the plan administrator will not absolutely, automatically make the QDRO null and void, your ability to secure your interest in the pension may be limited or lost,” White said.

For example, he said, the plan administrator could deem the QDRO unenforceable because the order would require the plan to provide a benefit to someone other than the beneficiary identified by the plan whose benefits vested immediately upon the death of the participant. Similarly, if the plan itself called for all benefits to cease upon death of the participant absent the election of a survivor benefit and no survivor benefit was elected — and the plan administrator was not on notice that a survivor benefit should have been elected because the QDRO was not previously served — the ability to collect under the plan would disappear.

As we said earlier, your situation is unique and very fact specific. You should speak with an expert who can review all the facts of your case to make sure all your options are explored.

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This story was originally published on June 29, 2022.

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.