My husband recently died and in gathering papers, I came across his Divorce Decree from his first wife. The value of his 401K, as of date of trial, would be given when available. It also states, "The 401K shall be split via "QDRO" and the Wife shall be responsible for preparing the QDRO and submitting to the Husband's employer. It has been over 2 years, there has been nothing filed with the courts nor had we received anything from the plan administrator. What could possibly happen now, once I file my papers with the plan administrator?

GoneToSoon

When you reqest a distribution from the 401(k) plan (assuming you are the beneficiary), the plan administrator will react in some unpredictable way. One possibility will be that the balance will be distributed to you without any questions. Another is that the amount award to the the former spouse will be paid to the former spouse and that the balance will be paid to you. Another is the the plan administrator will allow a reasonable time for a qualified domestic relations order to be submitted. It depands on what information and documents have been given to the plan administrator and how the plan administrator interprets the law and the materials submitted. Actions and documents after the death of a plan participant are subject to confusion and controversy.

You posted in another thread that you were being told that you weren't the beneficiary. This might be part of the answer. If the QDRO was filed (even if you weren't aware of it), then his first wife might be the beneficiary and that's why you can't get any specifics.

Definitely time to contact an attorney and quickly.

Thanks, I made a visit to our attorney this morning and he is preparing all necessary papers to move forward.

Happy Holidays!
GoneToSoon

Under federal pension law and Surpreme Court precedents (Boggs v. Boggs) you as the surviving spouse have inherent rights to your husband's 401k benefits which take priority over the rights of other beneficaries such as an ex spouse. The ex spouse's right to your husband's benefits can only be enforced by submitting a domestic relations order (DRO) which must be approved by the plan adminstrator as a Qualified DRO (QDRO). If no DRO has been submitted to the plan by the ex then you as the surviving spouse have the statutory right to your husband's benefits under the 401k plan and no benefits can be paid to the ex. It is very possible that the ex never retained counsel to prepare the QDRO which had to be approved by the court before being submitted to the plan administrator.

One risk to you is that the ex could file a claim in state court against you for her share of you husband's benefits as provided under the divorce decree after they are paid by the plan but that would depend on whether state law would allow such a claim if no QDRO was approved by the plan administrator. Also some states do not allow the filing of a DRO by an ex spouse with a state court after one of the parties has died.

The only way you would not be the beneficiary of your husband's benefits is if, prior to his death, you had agreed in writing to his designation of another person as his beneficiary of the 401k benefits. If the 401k benfits were split under a QDRO, as surviving spouse you would be entitled to the remainder of your husband's benefits that were not awarded to the ex under a QDRO.

MJB, there is another posting where she indicated that she has been told she is not the beneficiary. That implies that the prior spouse did have a QDRO indicating that she was to be considered the surviving spouse for plan purposes, probably completed before the remarriage.

I know that. However, She indicated in this posting that the benefits were to be "split" between the husband and the ex which means that her husband would have retained some benefits. Also she has stated that a DRO was never filed with the courts or the plan adminstrator.

What's wrong with her filing a claim for death benefits as surviving spouse?

Updated comment added 12/28:

K2retire:

If you had read Gonetosoons initial post that you refer to, you would have noticed that several months after he remarried, her husband failed to file an updated beneficiary designation form requested by the new service provider which resulted in GTS not being designated as the beneficiary under the plan. However, under ERISA as the surviving spouse GTS is entitled to all of his 401k benefits in the absence of a QDRO.

How you could conclude from the information provided that because she was informed that she was not the beneficiary implies that the prior spouse had a QDRO designating the ex as the surviving spouse is beyond me.

I think that mjb's suggestion that GoneTooSoon file a claim for the death benefits is a good one, and that GoneTooSoon should do so as quickly as possible.

This could be a first come, first serve situation. The regulations certainly provide for the efficacy from the plan's perspective of a QDRO that the ex-wife might obtain now, even though the employee has died. DoL Regs § 2530.206(c)(2), Example (1).

On the other hand, since GoneTooSoon was married for a year to employee before he died, she might find that Carmona v. Carmona, No. 06-15581 (9th Cir. 9/17/2008) could be the basis for GoneTooSoon to prevail.

It's good GoneTooSoon has already engaged an attorney to assist her in this situation.

Yes, I was told I was not the Bene but there is a possibility that no one is listed or the child they have together may be listed. I had his mom to call the plan admin., she was not listed. I also checked with the county where the ex resides and the county in which he worked, neither courts shows any QDRO been filed. I also went ahead and filed a Letter of Administration because this issue now makes it an estate.

GoneToSoon

No lawyer I, but it seems this is, at least for now, a plan issue, not an estate issue. Please make sure your attorney is intimately familiar (not casually familiar) with QDRO's. JSimmons and mjb have provided good advice.

The DOL has some "reading material" here: http://www.dol.gov/ebsa/Publications/qdros.html