27 Mar My ex is dying. Will I still get half of her pension?
Q. Upon our divorce, the court awarded me half of my wife’s retirement benefits. I was just told she’s dying. Will I still get my automatic monthly payments from her if she passes away? And will my share of payments increase or stay the same? How can I tell? And do I have a right to her other assets?
A. We’re sorry to hear about your ex-wife.
The answer to your question will depend on a number of factors, but here’s what you should know.
First, it is important that one or more Qualified Domestic Relations Order(s) has been “filed” with the court, and that a “filed” copy has been presented to the plan administrator of the retirement benefits prior to the death of your ex-spouse, said Kenneth White, a certified matrimonial attorney with Shane and White in Edison.
“A Qualified Domestic Relations Order (QDRO) instructs the plan administrator in far greater detail than a judgment of divorce how the retirement benefits at issue are to be distributed between ex-spouses,” White said. “Failure to secure a `filed’ QDRO and serve the same upon the plan administrator prior to the death of your ex-spouse could result in you losing your claim to share in the retirement benefits that had been awarded to you.”
White said for there needs to be a separate QDRO for each retirement benefit to be distributed.
So if there are 401(k) benefits to be distributed, it will be distributed in accordance with the directives of a specific QDRO, he said. If there are additional, separate 401(k) plans or IRAs, there must be separate QDROs for each separate account. Similarly, if there are pension benefits to distributed, a separate QDRO will be required — uniquely drafted to address the pension benefits, White said
Your question refers to “monthly payments,” so it appears what you were awarded is an interest in the monthly pension benefits that had been amassed in your ex-wife’s name.
“Whether you will continue to receive monthly payments after your ex’s death is very fact specific to the pension that has been earned by your ex and what, if any action was taken at the time your share of the benefits was set aside,” he said.
For example, many pension plans offer a “surviving spouse” option. If your ex-wife had the option to elect the “surviving spouse” option and did in fact elect that option, upon her death you will continue to receive the monthly payments that had been directed to be forwarded on your behalf.
Without a “surviving spouse” option, the outcome will be “fully dependent on the specific, controlling language of the pension plan,” White said.
Many plans read that upon the death of the participant that any payments due and owing to the alternate payee are to terminate, meaning that your receipt of monthly payments will stop, he said. Other plans read that once the alternate payee’s share of the pension payments are set aside for that alternate payee and will will be paid to the alternate payee until that person’s death, regardless of the status of the plan participant, he said.
It is very unlikely that your share of any pension payments in pay status will increase upon the death of the plan participant, he said.
To see the status of the plan you’re talking about, you should speak to an attorney who can review your QDRO, the pension plan guidelines and the language in your divorce judgment.
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This story was originally published on March 27, 2023.
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