Jump to content

Recommended Posts

My mom had a Pension. A QJSA. She divorced in 2006 and retired in 2011. In her divorce they each retained their own retirement acts. Free and clear from any claims of one another. Through her employer I was her beneficiary on her life ,ad&d, 401k while she was working. She has passed and the company said the beneficiary had been notified without another word spoken to me. Her attorney said that state law (Ohio) predeceases the ex in retirement plans with decree which she thought all would go to me (pension and other acts) I am her only child. Now, her employer said I was not the beneficiary although I showed them paperwork that I was, which was done at her retirement in 2011. EVEN THOUGH THEY NOW SAY, after 5 months of back and forth, that I’m not the beneficiary they want me to send in her death certificate? It does not make any sense. 
 

Not only am I dealing with the death of my best friend but her employer is making me feel like crap to be honest. It’s all so very sad and don’t know what to do at this point. Do I just give up? Do I let it go? My mom did not want him to have anything because he had his own and it was always her intentions for me to have her acts. I was also her power of attorney and we had bank acts together. I have taken a full notebook of notes with the conversations I have had with her benefits center and Human Resources.  Any insight would be appreciated. Thank you so much! 
Quinan

Share this post


Link to post
Share on other sites

You said a few things that don't really fit together.  You mentioned she took a "QJSA", which is a Qualified Joint and Survivor Annuity".  However, you said she wasn't married at the time of her retirement in 2011.  By definition, the QJSA is for spousal coverage.  If there is no spouse, then QJSA is a life annuity w/ no survivor benefits.  Therefore, it is very possible that your mother was not permitted to designate you as her beneficiary under the terms of the plan.

However, that doesn't seem to fit with the plan implying there was a beneficiary, but it wasn't you.  A plan can permit a non-spousal beneficiary, but it isn't common.  And if it did allow for a non-spousal beneficiary, your mom would have had to designate that person.    

Assuming you are the executor of the estate, you should ask for a copy of her signed benefit election form from 2011.  That would likely provide all the information you need to determine what form of payment she elected, and who the beneficiary is, if anyone.  

If she was divorced at the time of retirement, and there was no QDRO assigning a portion of her benefit to her ex spouse, the ex-spouse should have no impact on any of this.

Share this post


Link to post
Share on other sites

Thank you Effen for your reply. I'll try to clarify:

My mom was married 1996 when she did the QJSA. From the Summary of her plan, she was allowed to name a spouse or a non spouse beneficiary at the time providing she get a waiver signed. She knew that he would never sign a waiver so the beneficiary was him. Fast forward to divorce 2006....The divorce gave them each their own accounts (retirement, annuity, pension, 401, stock) free and clear of claims of the other. My mom never worried about it from then on. When she retired 2011, she filled out her benefit elections....I have all the elections on hand naming me as the beneficiary. I am however missing the top page of her beneficiary copy that she gave me from her pension QJSA though as we had moved and paperwork had gotten jumbled. But I have a very good chunk of it. 

 Fast Forward to 2019....mom has passed tragically at the hands of her ex husband in Mexico. He had tried for years to get his hands on all her money and possessions and has finally done so. To the point of actually emailing her life insurance company (apart from her employer) to name him as the beneficiary of her life insurance and to take me off the insurance as beneficiary. This happened AFTER she died. The life insurance company did not give him any payouts but just so you know that this human has not played by the rules and possibly got ahold of her employer benefits before I called them to let them know of her passing. Now her employer won't talk to me, her 401k asks me every month to turn in another affidavit of beneficiary, etc., another notorized copy of my social, ANOTHER death certificate. I tend to think they are stalling because they have paid out the wrong person. This all makes no sense to me. But I have been reading a lot about ERISA and fear that I may have no recourse since he is a ex spouse. Thank you so much, I hope I made more sense.

Share this post


Link to post
Share on other sites

If he is the ex-spouse, and there is no QDRO, he has no rights to her pension.  

Can you look at her benefit election form and tell me specifically, what form of payment did she elect?  She probably had options - life annuity, life annuity with 10 years guaranteed, Joint and 50% Survivor, Joint & 100% Survivor, etc.  Specifically, what did she elect.

If you have a signed benefit election form, electing a Joint and x% survivor benefit, with you named as a beneficiary, I assume that form is notarized or witnessed by a plan representative?  If you have that, and the plan sponsor should have no reason to deny your claim.  If they are denying your claim, you have the right to a formal appeal.  If you send them a letter stating that you are appealing their decision based on the election form in your possession.  If that doesn't work, you might need to hire a lawyer.    

Once a benefit is in payment status, you cannot change the beneficiary.  Therefore, there is no way her ex-husband could have had it changed if you were the original beneficiary. 

Share this post


Link to post
Share on other sites

Effen thank you for responding.

Yes, he is a ex spouse and no there was no QDRO. Her benefit election form from 2011 for 401k, life, ad&d and stock, I was the beneficiary which I have the copies of them and the confirmation letters that her employer sent to us at the time of the election. I do not have the page of beneficiary for the pension listing the beneficiary. It was 3 pages stapled and missing the top page. The second page says that her pension is going into a joint account that her and I have together through her employer ( checking acct) and it also gives the amount per month going into our acct and the a Joint and Survivor Annuity of 100%. She gave these to me in 2011 to keep for safe keeping and also telling me of intentions and so forth.

Her employer also gave her a retirement life insurance policy if she retired before a specific year but they also said I was not a beneficiary. So, I am confused because there would of been no reason for her to change anything and the human resources dept also said that once her elections are in, they can't be changed after retirement or when benefits start.To be honest they have been vague to say the least. I understand that if I am not the beneficiary, but I sent them the paperwork and everything that I have. They looked into for a month and then told me through email after I contacted them that the beneficiary has been notified. That's it. No other communication even though I have tried. Thanks again. This is the most information I have gotten in months. I appreciate your insight for sure.

One additional question, If she never told her employer of her divorce would that have something to do with this mess? She was on disability when she got a divorced and never went back to work until her retirement. She was getting long term disability from her employer and social security disability until retirement from employer.

Share this post


Link to post
Share on other sites

You really need to see the beneficiary election page to know for sure.  We know she elected a J&100% Survivor annuity, but we really don't know who she elected as beneficiary.

When she elected her form of payment she would have declared if she was married, or not. Because of your age relative to hers, taking a J&100 with you as beneficiary would have been a significant reduction in the amount of the monthly payment.  I know you said this plan permitted non-spousal beneficiaries, most plans do not.  

I think your best option is to have an attorney write a letter to the plan on behalf of the estate, asking to see a copy of her benefit election form.  That will provide all of the answers.

If she was divorced prior to her election, it should not have been relevant.  Now, if for some reason she wanted to hide the fact she was divorced , and she completed the paperwork as if she was married, that would be fraud and yes, would be a big mess.  

Share this post


Link to post
Share on other sites

I recommend re-reading Effen's advice/comments.  A few other points as corollary to his advice:

  1. All above discussion appears to assume the plan is subject to ERISA.  Some plans, notably those sponsored by a governmental organization, are exempt from most provisions of ERISA, including QDROs, although some voluntarily include ERISA-like provisions in the plan document.   If not already done, this is the first question you need to answer.  (State law has much more impact on governmental plans than on ERISA plans.)
  2. Any beneficiary election for life insurance, 401(k) plan, stock, etc. will not be relevant to the pension plan unless the pension plan is specifically included.  Divorce may or may not automatically change a prior beneficiary election. 
  3. QJSA means "the spouse is the beneficiary"; this means a QJSA for an unmarried participant is automatically something else (probably a life-only annuity or a life annuity with a 10-year guarantee).  However, some plans allow a participant to elect another option called "contingent annuity" that functions like a QJSA but allows a non-spouse contingent annuitant (and such person must be specified at the time of retirement).  Terminology can be important. 
  4. Likely, you need legal advice, quickly.  I suggest using an attorney with ERISA experience (in my observation, divorce/family law attorneys usually don't measure up).  My own database does not include any Ohio attorneys, but Effen lives in Western PA and can probably recommend some attorneys in your area.

Share this post


Link to post
Share on other sites

Thank you both so very much. When I spoke to her benefits dept. they did say that her beneficiary was not me. Does that automatically mean that a spouse has beneficiary rights even though they were divorced prior to her retirement and prior to her annuity starting? There was no QRDO but the judgement divorce decree gives her her own defined benefit plan free and clear of any claims of her ex husband. 
also, it is a ERISA governed plan and she did have the J&S A. 100%. Her monthly pay while working was 3200. When she retired and took the J&S 100% her benefit was 900/ month. The benefit department had also asked me if her ex spouse was alive when I called in to let them know of her death. Would that mean there was a contingent beneficiary? And can you name a ex spouse as a joint owner and also a beneficiary after you pass? Thank you. I most definitely will get a well versed ERISA attorney.  Effen any referrals you trust? Thanks!

Share this post


Link to post
Share on other sites

It is possible the spouse, now ex-spouse, was once named as beneficiary and your mother did not update the form after the divorce. So from the Plan's perspective they may have a valid beneficiary designation that was never revoked. I'm not saying this did happen, just that it is a possibility.

Share this post


Link to post
Share on other sites

Lou S.

Thank you. I am guessing that could be a possibility also. Would it be a "valid" beneficiary in that instance?

Share this post


Link to post
Share on other sites
3 minutes ago, Quinan said:

Lou S.

Thank you. I am guessing that could be a possibility also. Would it be a "valid" beneficiary in that instance?

I'm not a lawyer, but it may depend on the terms of the Plan and whether or not a beneficiary designation of a spouse is revoked on divorce or if an affirmative new election must be made to change the beneficiary.

Share this post


Link to post
Share on other sites

Lou S.

Thank you, I looked into the SPD and of course it is very vague on that issue, so I will need to get the forms she filled out in 2011 and the benefit plan in full and not the summary.

Share this post


Link to post
Share on other sites

Regarding the old paperwork she signed prior to 2011, it's possible that you are referring to a QPSA - an election form that your mom would have completed while she was still working and still married.  It used to be common for pension plans to require married participants to complete these regularly.  

It's also doubtful that the plan would have allowed her to choose a 100% Joint and Survivor option with you as the beneficiary because of your age difference - although it is technically possible, I guess.

Share this post


Link to post
Share on other sites

Pension Dork Thank you for the reply. My mom and I were 20 years apart. Her an her ex were 10 years apart her being his senior. Her paperwork from 2011 say that she has a 100% Qualified Joint and Survivor Annuity. Another question would arise if her company made her take a QJSA with a surviving spouse as the only beneficiary as in default. From my understanding a QJSA is only for married couples? Am I missing something? Would her employer make her spouse a default beneficiary? If no QRDO, is he entitled to anything assuming he was a beneficiary of her QJSA  and their divorce decree each account is separate property free and clear of any claims of the other. I seem to be able to read this in so many different ways and scenarios. It doesn't seem to be black or white or cut and dry.

Share this post


Link to post
Share on other sites

Again, the answer to everything is in the signed benefit election form.  You need to get a copy from the Plan Administrator.  If you are the executor of the estate, ask for a copy on behalf of the estate.  I would think you have a right to see it, and they have to provide it to you.

If they were divorced before the benefit commenced, then the ex-spouse is not relevant.  She was not married at the time the benefit commenced, so no QJSA (that provided spousal coverage - see David's post) would apply.  No, the ex-spouse would not be a "default beneficiary".  The only way the ex-spouse would be considered to be the beneficiary of a QJSA is if one, or both, of your parents committed fraud.

You need to see the signed election.  It will provide the answer.

Share this post


Link to post
Share on other sites

Thank you Effen! I will work on getting the benefit form. They haven't been very forthcoming yet but I will keep at it. They did tell me that he was the last beneficiary on file. So..... we will see and I will keep you abreast of the situation. My mom was disabled when she left her company and had Multiple Sclorosis. So I am not sure that she ever went back to her employer after her separation from them. In the spd it does say that a employee can name a spouse or other beneficiary of the pension benefits, I just have to see the terminology of the form because it is so vague.  I sooooo appreciate all your help. Fortunately, I was not related to her spouse in any shape or form. He is responsible for her early death from a supposed fall down the stairs in Mexico......I have no recourse there so, this would be my only recourse is to make sure he does not benefit from her death, what-so-ever. Thanks again!

Share this post


Link to post
Share on other sites

Quinan, assuming that this is a plan subject to ERISA, there are U.S. Supreme Court cases that say state law (e.g., a state law that revokes a spousal beneficiary designation on divorce) is not followed because of federal ERISA preemption. So the plan could pay to the named beneficiary, even if the named beneficiary is the divorced spouse and even if it seems obvious that the divorced spouse was left as the beneficiary because of the participant's inattention (i.e., where the beneficiary designation was not reaffirmed after divorce). Some later cases have said that once the benefit has been paid out to the ex-spouse in accordance with the plan's beneficiary designation, the person who would otherwise take the benefit (i.e., who would take it if the beneficiary designation naming the ex-spouse were disregarded) can make a claim against the ex-spouse for the money, if the ex-spouse had agreed in the divorce not to take it. In other words, while that divorce agreement under state law is not enforceable against the plan because the plan is protected by ERISA, the agreement may be enforceable against the ex-spouse once the money is out of the plan. Gets complicated.

Share this post


Link to post
Share on other sites

Thank you Luke! Yes, the plan is subject to ERISA. I have counsel working on getting plan documents secure. Hopefully will find something out within the month. Since she was a participant in a QJSA for the pension and named him as a beneficiary wouldn’t that automatically be a null and void designation? Assuming that ERISA protects the surviving spouse, and if she named anyone other than a surviving spouse that she would need waivers? So, she didn’t have a surviving spouse but her designation was never changed if that makes sense. So, all in all if I understand it correctly, she should of had a single life annuity. With no spousal survivor benefits. No QJSA. NO waivers. Complicated is a understatement! Good to know of secondary possible recourse... will keep updates. 

Share this post


Link to post
Share on other sites

Hi All

Got a little more info from the employer. I am beneficiary of the 401k and the life in her employer retiree life. I am not (they say) of her QJSA pension. My question is how can she even have a QJSA if she was not married? This is a ERISA Qualified Defined Benefit Pension Plan. How can they pay someone when there is no one to pay? Is this legal? Is this ethical? Is this right? She divorced before she started her pension. They are still saying they will pay the non participant ex with no QDRO. How is it even a Qualified if they pay out the wrong beneficiary or one that doesn't exist by design of ERISA? Thanks for listening. Stay WELL!!

Share this post


Link to post
Share on other sites

What does the benefit election form she signed say?  Were you able to get a copy?

 

Share this post


Link to post
Share on other sites

Hi Effen- they have not disclosed that to me since they said I was not a beneficiary of the pension plan. They did say however that when she retired her election had named a “beneficiary “ for her ERISA QJSA pension and that her election form stated “married”. That’s all we were able to get out of them at this moment in time. I think I’ve hit a wall. Employer counsel said I was not beneficiary on anything, then 30 days later employer says I am beneficiary on life and 401 k but not pension. Hoping to somehow get a copy still. Since it is ERISA they (employer) is saying I don’t have a right to see it. But I thought her 401k was ERISA also, is it not? Thanks! 

Share this post


Link to post
Share on other sites

If you are saying she was not married at the time of her benefit commencement, then your mother committed fraud and the plan should be informed.  

"My mom was married 1996 when she did the QJSA."  - don't know what "did the QJSA" means?  Maybe you are referring to a QPSA which confirms marital status in case a participant dies prior to retirement. Either way, this "doing" would not impact her retirement election because it happened more than 180 days prior to commencement.  In other words, it is not a valid election of a form of payment.  It was just informational.

"Fast forward to divorce 2006....The divorce gave them each their own accounts"  = apparently it really didn't since there was no QDRO.  Although the divorce decree can require it, it doesn't actually happen without a QDRO.

"When she retired 2011, she filled out her benefit elections", "They did say however that when she retired her election had named a “beneficiary “ for her ERISA QJSA pension and that her election form stated “married”" - this was fraud and should invalidate her election.  That likely won't help you, but the plan should stop paying the "beneficiary" - although if a Joint and Survivor is permitted to non-spousal beneficiaries, the plan might take the position - no harm, no foul and keep paying the person she requested.  

  • Like 1

Share this post


Link to post
Share on other sites

Thank you Effen.
 

I did tell the plan over 7 months ago, sent in her divorce decree to her employer. When she retired, she was already in disability status for 4 years and had not gone back to work. I do believe {possibly} committed fraud, but not willingly or maliciously on her end, that’s why I had sent in the decree. I believe that she thought that what was said in the decree would over ride everything and never thought another thing about it. I’m not even sure she filled out another election form in 2011 because she had already been absent from there for years. I don’t know. I can tell you that even though I have ERISA accounts, I had no idea what they entailed. And mom, probably even less. Will keep you updated. Thanks for your impute. Very much appreciated! 

Share this post


Link to post
Share on other sites

Hi all-

Just want to give you a update on what's happening. Employer is saying she was "married", when she did the election at retirement for the 100% J&S Annuity. Now that they have the divorce decree that I gave them, they are now saying she had a 100% Contingent annuitant. They are saying that they treat beneficiaries and contingent annuitants differently. We still are looking for the benefit form (which they still haven't provided. working on it) . I'm really now just confused at it all. Plan says for a 100% contingent annuitant must have spousal waiver and for a 100% J&S you have to have a spouse. So....I have plan documents but her SPD's in the year she retired never mentioned any Contingent Annuitants. Just spouses and beneficiaries. Her employer says there are beneficiaries and annuitants. They are not the same, They are not interchangeable. 

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now

×
×
  • Create New...