Court Date Tomorrow

[ParticipantPensionLimbo]

My ex-wife passed away before a QDRO was done.

The requirement for the QDRO is in the Family court order for my pension only.

I'm going to request the court/judge remove the need for the QDRO since my ex-wife has passed and we can't move forward to begin a QDRO as originally intended.
By the way, I spoke to the originally assigned QDRO attorney and he told me that given the complexity of getting a QDRO now, I would essentially lose the entire retirement benefit to legal fees! Huh!?

Court date is tomorrow - just found this website today!

Trying to have the court/judge provide a MUCH cheaper solution to getting my pension released without going through Probate and whatever legal gears this QDRO attorney said would eat the entirety of the pension fund!

Please advise and thank you in advance.

Best regards,
Michael D. in California

[Larry Starr]

I don't usually respond to individual participants since these questions raise personal legal issues.  However, let me see if I can help (you still should have an atty representing you).

You say no QDRO was done.  Therefore, your retirement benefit should not be encumbered in any way at this point.  It is unlikely the court would approve any QDRO at this point.  So that question that arises (that you did not provide information on) is why do you think your retirement benefit is in any way held up? Your plan's QDRO procedures should provide that you are not subject to any restrictions at this point.  Maybe you have to provide a death certificate to the plan just so they are comfortable, but this is something you should be taking up with the plan. Best of luck.

[jpod]

Question for BenefitsLink regulars:  Can the estate of an ex-spouse be an alternate payee?  The statutory language suggests "no."  Is there case law to the contrary?

[ParticipantPensionLimbo]

Why the retirement benefit seems held up is the seeming adversarial position of both the Plan admin and also the QDRO attorney who was assigned in the court order.

Just last week Thursday, the Plan admin sent the judge a 5-page letter saying (basically) "the court should retain jurisdiction" -and- continuing to say "the court has already decided to separate the benefits" inferring that my ex-wife (AP) should still be entitled to receive into her estate (if any).

I *did* take a copy of the death certificate to the Plan but they even threw in a misrepresentation in the 5-page letter that said I told them I was a widow and not divorced! :( With all that from the Plan and the QDRO atty that said the funds would evaporate, I'm nervous.  

[RatherBeGolfing]

15 hours ago, jpod said:

Question for BenefitsLink regulars:  Can the estate of an ex-spouse be an alternate payee?  The statutory language suggests "no."  Is there case law to the contrary?

Sort of... There is a case out of the 9th Circuit (Mack v. Kuckenmeister, 619 F.3d 1010) where the estate of the AP was allowed to receive the benefits.  It has been a while since I read it, but it basically goes like this:

1. P and AP agreed to the details of the divorce, with all or a part of Ps 401(k) account going to AP
2. Before the order was signed, P killed AP and shot the Judge
3. APs estate got an an order nunc pro tunc dating the order to a date before the death of the AP.  I think the AP is still the AP on the order, but the estate is allowed to collect the benefits on APs behalf.

There are a lot of other things going on in this case, but I believe the estate was allowed to collect because they got a retroactive order dating back to when AP was alive.  It also gave the state court the SM jurisdiction to decide that a DRO is QDRO.  

OP is in the 9th Circuit and it sounds like the plan is asking the court to enter an order (state court can determine its order is a QDRO) to pay the benefits to APs estate since AP died after the divorce was final but before a DRO was issued. 

[Larry Starr]

9 hours ago, RatherBeGolfing said:

Sort of... There is a case out of the 9th Circuit (Mack v. Kuckenmeister, 619 F.3d 1010) where the estate of the AP was allowed to receive the benefits.  It has been a while since I read it, but it basically goes like this:

1. P and AP agreed to the details of the divorce, with all or a part of Ps 401(k) account going to AP
2. Before the order was signed, P killed AP and shot the Judge
3. APs estate got an an order nunc pro tunc dating the order to a date before the death of the AP.  I think the AP is still the AP on the order, but the estate is allowed to collect the benefits on APs behalf.

There are a lot of other things going on in this case, but I believe the estate was allowed to collect because they got a retroactive order dating back to when AP was alive.  It also gave the state court the SM jurisdiction to decide that a DRO is QDRO.  

OP is in the 9th Circuit and it sounds like the plan is asking the court to enter an order (state court can determine its order is a QDRO) to pay the benefits to APs estate since AP died after the divorce was final but before a DRO was issued. 

The key here is that there must be an order obtained that gives a retroactive effective date to the order and the plan administrator must be willing to accept that (which is not guaranteed).

The definition of alternate payee in the code provides that a participant's benefits may only be assigned to a spouse, former spouse, child, or other dependent of the participant  It does not include an estate or an unnamed beneficiary of the alternate payee.  The PA is justified to reject the QDRO on the basis that the estate named as beneficiary is not an allowed party and would violate the QDRO provisions in ERISA and the Code.  This is a sticky situation and very well may require lawyers since the PA seems to have taken an impermissible stance as an advocate.

Here is what Nunc pro tunc  means: it may apply when "a judgment is entered, or document enrolled, so as to have the same legal force and effect as if it had been entered or enrolled on an earlier day". Mozley and Whiteley's Law Dictionary (11th ed.). ISBN 9780406014207. quoted in Emanuele v Australian Securities Commission [1997] HCA 20, (1997) 188 CLR 114 at p. 131.

On 6/18/2018 at 5:10 PM, ParticipantPensionLimbo said:

Why the retirement benefit seems held up is the seeming adversarial position of both the Plan admin and also the QDRO attorney who was assigned in the court order.

Just last week Thursday, the Plan admin sent the judge a 5-page letter saying (basically) "the court should retain jurisdiction" -and- continuing to say "the court has already decided to separate the benefits" inferring that my ex-wife (AP) should still be entitled to receive into her estate (if any).

I *did* take a copy of the death certificate to the Plan but they even threw in a misrepresentation in the 5-page letter that said I told them I was a widow and not divorced! :( With all that from the Plan and the QDRO atty that said the funds would evaporate, I'm nervous.  

It is very strange/odd that the PLAN has written to the judge.  The plan is supposed to be a neutral party in this but is obviously not.  You very well may need your own competent ERISA attorney to help you with this.