30 Jan I was getting my ex’s pension and he died. Now what?

Q. I was getting my ex-husband’s pension from 2018 to 2023 and I did not know he had passed away until the checks stopped. Can they stop my pension checks? They never sent me any letter.
— Concerned

A. We’re sorry to hear about this.

The answer? It depends.

You need to go back to the paperwork that was created that confirmed your right to share in your ex-husband’s benefits, such as in your final judgment of divorce or marital settlement agreement, and see what your Qualified Domestic Relations Order (QDRO) said, said Kenneth White, a certified matrimonial attorney with Shane and White in Edison.

The QDRO would have been filed with the court and presented to the plan administrator, he said, noting the pension plan documents may also explain what benefits were available and what rules apply regarding the payouts.

White said your final judgment of divorce or marital settlement agreement should have specifically set forth exactly what rights you had to share in the retirement benefits amassed in your ex-husband’s name during the course of your marriage.

“Typically, it would state that each party is to receive 50% of the benefits amassed during the marital coverture period, i.e., between the date of marriage and the date the Complaint for Divorce was filed,” he said.

Further, if it was intended that you were to continue to receive payouts from the pension after your husband passed away, language should have existed indicating that the option of “survivor benefits” would be elected or that a “Separate Interest QDRO” would be drafted, White said.

“The election of survivor benefits would have reduced the monthly pension payout amount, but would result in the alternate payee (you) continuing to receive your share of the pension payouts regardless of whether your ex passed away or not,” White said. “Had the pension been in pay status prior to your divorce having been finalized and no prior election for survivor benefits had been made, that option would not have existed as your ex and yourself had waived it during your marriage.”

The creation of a “Separate Interest QDRO” would have similarly protected your interest in the pension — your continued receipt of monthly pension payments — regardless of whether your ex survived or not because it would have directed the plan administrator to create what would have effectively been a “separate” pension in your name for your benefit, White said.“Again, such an election would have reduced the monthly payments of the pension as there is a cost associated with providing the alternate payee with lifetime benefits,” he said.

In the event there was no election for survivor benefits or the creation of a “Separate Interest QDRO,” you are at the mercy of the terms of the specific pension plan, White said.

“While some pension plans may contain controlling language allowing for the alternate payee to continue to receive monthly payments regardless of the status of the plan participant (your ex), unfortunately, the majority of pension plan terms direct that upon the death of the plan participate, absent the election of survivor benefits, monthly payments from the pension will stop and no longer be available to either the estate of the plan participant or to the alternate payee (you),” White said.

Accordingly, it would be common for an individual in your position to lose the benefit of receiving payouts from your ex-spouse’s pension upon your ex’s death, he said.

“To assure that all your specific rights are being taken into consideration and otherwise protected, I must recommend that you meet with a Certified Matrimonial Law Attorney in your area who can take the time to review with you all the documentation relevant to your specific matter,” White said.

Best of luck to you.

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This story was originally published in January 2025. 

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