27 Jul My ex died. Can I still get his 401(k) and pension?

Q. I have a question on Qualified Domestic Relations Orders (QDROs). I’m divorced and ordered to get half my ex’s IRA, Roth IRA and 401(k), but there was no QDRO drafted. My ex-husband died before any distribution was made to me and I was left as his sole beneficiary. He never remarried and we have three minor children. In his will, I was the only beneficiary. Can I still get a QDRO, or what happens to these accounts?
— Ex-wife

A. We’re sorry to hear about your ex-husband’s death.

There are several parts to you question, so let’s break it down one at a time.

First, the will.

“The fact that the deceased spouse had a will that still named his ex-spouse as a beneficiary of his estate is resolved by the fact that New Jersey law revokes spousal designations after a divorce,” said Evan R. Weinstein, a family law attorney with Weinstein Family Law in Short Hills.

In other words, if your will is left unchanged after a divorce, your assets are disbursed as if your spouse was never in the will, Weinstein said.

Similar to the retirement assets, N.J.S.A. 3B:3-14 says that in cases of divorce or dissolution, even if a former spouse or partner, or relatives of the former spouse, are named as beneficiaries for life insurance, they cannot receive the benefit, he said.

However, this does not mean that the former spouse, who is still living, is left with no recourse.

On your question about the Qualified Domestic Relations Order, or QDRO, yes, you can still get a QDRO, he said.

“A Qualified Domestic Relations Order (QDRO) is a domestic relations order that creates or recognizes the existence of an alternate payee’s right to receive, or assigns to an alternate payee the right to receive, all or a portion of the benefits payable with respect to a participant under a retirement plan, and that includes certain information and meets certain other requirements,” Weinstein said. “QDROs are used for most defined benefit plans including but not limited to an IRA, 401(k) or a pension.”

Even after the entry of a final judgment of divorce, from an administration standpoint, the divorce docket number is not dead, Weinstein said. It is merely dormant or hibernating.

He said it is not closed indefinitely, as any issue that arises out of the terms of the judgment of divorce, especially enforcement of the terms of any marital settlement agreement, may be subject to post-judgment litigation.

“A domestic relations order otherwise meeting all of ERISA’s requirements to be deemed a QDRO shall not fail to be treated as a QDRO solely because the order is issued after the death of the participant, or even revises another QDRO,” he said.

So now let’s address who stands in the place of the deceased former spouse when the surviving ex-spouse attempts enter a QDRO in the Superior Court, Chancery Division, Family Part.

The simple answer is that the administrator of the deceased’s estate can sign the QDRO and the surviving former spouse will receive their allotted share, Weinstein said.

“For all practical purposes, because the surviving former spouse cannot inherit from the deceased former spouse, the Surrogate Court will likely treat this matter as if the decedent died intestate,” he said. “If you die without a will, or intestate, your probate assets and estate are divided according to New Jersey’s intestate laws.”

The law of intestate succession in New Jersey say that if you die leaving a spouse, a registered domestic partner or civil union partner and children who are also the children of the spouse or legal partner, the spouse/legal partner receives 100% of the estate and no bond is required to be posted, he said.

If you die leaving a spouse, registered domestic partner or civil union partner, and children of a prior marriage, the spouse/legal partner receives the first 25% — but not less than $50,000 nor more than $200,000 — plus half of the balance of the estate, Weinstein said.

“The children of the decedent share the remaining balance of the estate,” Weinstein said. “If a child predeceased the parent and that child produced grandchildren, the grandchildren share the balance that would have been their parent’s share.”

If you die leaving a spouse, registered domestic partner or civil union partner, and no children, but are survived by a parent(s), the spouse receives the first 25% — but not less than $50,000, nor more than $200,000 — plus three-quarters of the balance. Surviving parent(s) receive all other assets of the estate, Weinstein said.

There’s more.

He said if you die leaving a child or children but no spouse, registered domestic partner, or civil union partner, the children will take equally. Grandchildren will take their deceased parent’s share, he said.

If you die leaving no spouse, registered domestic partner or civil union partner, parent(s) will take all, he said. If no parent survives, brothers and sisters of decedent will take equally. If a sibling predeceased the decedent, then the nieces and nephews will take their deceased parent’s share, he said.

If you die leaving a spouse, registered domestic partner or civil union partner and children, and the surviving spouse or legal partner has children from a previous relationship, the spouse receives the first 25% — but no less than $50,000 and no more than $200,000. Children of the decedent share the remaining balance of the estate, he said, but the stepchildren do not share in the estate.

If you die leaving a surviving spouse, registered domestic partner or civil union partner, and only step-children, the surviving spouse or legal partner receives 100% of the estate, he said.

And if you die without a surviving spouse, registered domestic partner or civil union partner who had children from a previous relationship and you have no other descendants, such as parents, siblings, grandparents or other direct descendants, the step-children share 100% of the estate, he said.

“So, the minor children of the deceased former spouse will each share one-third of their father’s share of the retirement assets and any other asset that he may have had at the time of his death,” Weinstein said. “In view of the ages of the children, a guardian will need to be appointed by the Surrogate Court.”

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This story was originally published on July 27, 2022.

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