20 Sep My grandchildren were abandoned. Can they get this pension?

Q. My daughter is legally married but her husband abandoned her and three kids who at the time were 4, 6 and 8. Now they are in their 20s. My daughter died two years ago and the kids received notice of a retirement plan. I called the company and was told the money goes to the husband as they are legally married, and he says he won’t give the money to the kids. Is there any option give that he abandoned the kids?
— Grandma

A. We’re very sorry for your loss, and we’re glad you’re trying to help your grandchildren,

Unfortunately, unless the children’s father decides to give the money to them, there’s not much that can be done.

Your grandchildren’s father, as the spouse of your daughter, has certain legal rights, including but not limited the right to recover certain assets amassed during the time that your daughter and he were married, said Kenneth White, a certified matrimonial attorney with Shane and White in Edison.

In New Jersey, there is no such thing as a “legal separation,” White said

Parties to a marriage are either presumed to be happily married, in the process of divorcing or divorced, he said. There are no other meaningful options.

“Had your daughter been divorced from your grandchildren’s father, action could have been taken to provide an update to the plan administrator of the retirement benefits concerning the marital status — divorce — and corrective action could likely have been taken to assure that the benefits were received by your daughter’s heirs as opposed to her ex-spouse,” he said. “Had your daughter commenced a divorce by filing a complaint for divorce prior to her passing, but the divorce had not been finalized, her estate could have stepped into the divorce litigation and finalized the same, perhaps protecting the retirement benefits for the benefit of the grandchildren.”

But given no divorce was ever commenced, your daughter was legally married to her husband at the time of her passing, he said.

He said certain rights and responsibilities come with a legally existing marriage.

Among the rights that one married spouse generally has is the right to share in the retirement benefits amassed by his/her spouse during the course of the marriage, he said.

“The plan administrator of the retirement benefits does not have any authority to deviate from this or to take any other action but to follow the rules of the benefit plan, which would generally read that any existing benefits, not otherwise forfeited as a result of the plan participant’s death, are to be released to the spouse of the plan participant, your grandchildren’s father,” White said.

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This story was originally published on Sept. 20, 2022.

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