Modifying a QDRO post-death
Posted 31 July 2007 - 04:33 PM
Any ideas are welcomed.
Posted 31 July 2007 - 05:24 PM
Q2 what type of plan is this?
Q3 Did the court reserve jurisdiction to change the terms of the QDRO after the divorce became final?
Q4 why didnt he have the QDRO modified before the AP's death?
Posted 01 August 2007 - 09:55 AM
Q3 - yes
Q4 - issue just came about when alternate payee died and participant demanded money.
Q1 - Participant wants the Alternate payee's portion to revert back to the Participant. Plan provides 60 payments guaranteed, about 30 are remaining, and plan provides remaining goes to Alternate payee's beneficiary. No beneficiary card on file. QDRO states if AP predeceases participant the AP's portion of participants benefits shall become payable to participant. Participant looking to go to ct. to get QDRO modified/interpreted so that, at the very least the 30 remaining payment go to participant and at most the entire AP portion goes back to participant.
I know there are a myriad of issues in this situation but the only issue of concern to me on this post is can a QDRO be modified/interpreted after the AP has died? What are the rules, if any, applicable to a post-death modification of a QDRO? ( I am finding authority on modifying a QDRO and possibly modifying after the participants death, but not finding anything for after the AP dies). Do the same rules apply to when the AP dies as when the participant dies?
Posted 01 August 2007 - 10:23 AM
Posted 01 August 2007 - 01:56 PM
Posted 01 August 2007 - 02:04 PM
I'm not sure whether interpleader is the correct course of action or whether there is another legal avenue that the plan and/or participant can or should pursue. That is a discussion reserved for an ERISA attorney.
But if a QDRO can state that an AP is the P's surviving spouse for ERISA purposes, it should be able to state that the P is to be the beneficiary of any death benefit payable to AP's estate.
Posted 01 August 2007 - 05:00 PM
The participant cannot retrieve any benefits awarded to the alternate payee if payments have started.
QDROphile: Does this yet hold true after the issuance of 29 CFR § 2530.206©(1) and ©(2), Example (3)?
Note to Readers: For you, I'm a stranger posting on a bulletin board. Posts here should not be given the same weight as personalized advice from a professional who knows or can learn all the facts of your situation.
Posted 01 August 2007 - 06:27 PM
Posted 01 August 2007 - 06:51 PM
Posted 02 August 2007 - 09:00 AM
The new regulation added absolutely nothing to the law. The Department of Labor went through a completely unhelpful exercise simply for the sake of form. In its defense, the statutory mandate was also vacuous, but the Department of Labor made absolutely no effort to address any interesting questions.
Mike Preston: I agree that an order would be qualified if drafted as you suggest. That is why I qualified my response. I am still willing to bet that the order is not drafted that way, and the question was whether or not the order be modified. Apart from state law concerns, the order could be modified to provide the remaining 30 payments to the participant. This is a test for those who believe in Hopkins v. AT&T, which I do not.
Posted 02 August 2007 - 09:14 AM