20 Jul My ex died. How do I get my part of his pension?

Q. I’m divorced and my ex-husband and I have a QDRO in place so I could get a portion of his pension. He recently passed away. What’s next?
— Divorced

A. We’re sorry for the loss of your ex-husband.

The answer to your inquiry depends largely on the language of your divorce decree, as well as the language included in the Qualified Domestic Relations Order (QDRO), which facilitates the division of the pension.

If the divorce decree memorializes your right to receive a portion of his pension, a QDRO was most likely prepared and served upon his pension plan administrator, said Jeralyn Lawrence, a family law attorney with Lawrence Law in Watchung.

She said retirement plans are not bound by the terms of your divorce decree alone to take any action. There needs to be a court order — in this case, the QDRO — instructing them to divide this asset.

“Therefore, while the division of your retirement assets might be provided for under your divorce decree, it is incorrect to assume that such a division will occur automatically,” Lawrence said.

She said the QDRO process is a critical one to ensure that you will each receive your share of retirement benefits as stipulated in your divorce decree. The language of the QDRO is guided by the terms of your divorce decree, which should detail how retirement assets are to be distributed between divorcing spouses.

Assuming that such provisions exist in your divorce decree and a QDRO was subsequently prepared and appropriately served upon the pension plan administrator, you may need to refer directly to the language of the QDRO to determine how the death of the participant — your ex-husband — impacts the benefits to which you are entitled, Lawrence said.

“Often, there is a distinction as to how these benefits will be treated based on the participant’s passing prior to the commencement of pension benefits versus his passing subsequent to the commencement of benefits,” Lawrence said. “This information may also be available in the summary plan description associated with his pension in the event such a document is in your possession.”

It is important to note that plans can change their terms over time and are required to modify their terms to comport with federal law, which could have an effect on the division of retirement assets, she said.

“It is important to notify your plan of your ex-spouse’s passing so that the plan may act accordingly,” she said. “In the event you are unable to get a copy of your QDRO or you do not recall whether a QDRO was entered, you should speak to the plan administrator or an experienced family lawyer who can attempt to get a copy for you.”

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This story was originally published on June 20, 2021.

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