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I will take door number 2, Monty! Yes, I'm sure!

My first thought response to the post was much the same as Larry Starr's, and I agree with that response. But my second thought is that you (through your lawyer) should be asking the PLAN what you should be asking the judge. Post-death QDROs relating to defined benefit plans are tricky because of IRC sections 414(p)(3) (A) and (B) and the potential for something like adverse selection (although the problem is not exactly adverse selection. The issues are complicated and the guidance issued by the Department of Labor at the instruction of Congress (because matters of post-death QDROs were so misunderstood and sometimes difficult) WAS ABSOLUTELY USELESS. SHAME, SHAME SHAME ON THE DOL . But what do you expect of an agency that doe not understand the law it is supposed to administer? The DOL QDRO Book has at least two material errors, so maybe useless guidance on post-death QDROS is an improvement. Back to the point. Because the DOL failed to do its job, defined benefit pension plans were left with unanswered questions about how to deal with a post-death domestic relations order. Well advised ones, of which there are very few when it comes to QDROs, created their own rules that try to be fair about allowing post-death QDROs, but also protecting plan assets against "adverse selection." Such rules should be set forth in the written QDRO procedures that ERISA requires of plans. So check with the plan to see if it has any guidance or limits relating to post-death QDROs to inform you (your lawyer) about what to ask for in anticipation of submitting the domestic relations order to the plan and setting expectations about whether you will have more or less trouble with the plan in the determination of qualification of the order.

It's a careful balancing act. As an Enrolled Agent, I get to practice Federal "tax law" as any accountant does. In addition, I get to practice ERISA "law" because that is what I am licensed for by my Federal license. That is also why my QDRO work is ALWAYS done through a lawyer since that is practicing domestic law which I cannot do directly but can be hired by an atty to produce work product for them. And I have been known to "cross over" the line sometimes! ?

They can't pay someone W-2 wages UNLESS he is an employee providing services. Otherwise, it is a dividend to a stockholder and it is NOT deductible to the corp. I would suggest they are giving the WRONG ANSWER. They should be saying something like "he consults to the company all year long for which he is paid the $27k", and they say that is over 1000 hours a year. They need to stop saying they are violating the law by paying W-2 style income to a non-employee!!!!

This, perhaps? https://www.erisa.com/revenue-procedure-93-42/

Option 1: If the company is a partnership, make mom a partner. Option 2: Get legally married to mom. Option 3: Get a bond. I will let you decide which of these you like the best

The DOL agrees. The initial eligibility computation period is the 12 month period beginning on the employment commencement date. If the plan defines later eligibility computation periods based on anniversaries of employment, the second 12 month period begins on the first anniversary of the employee's employment commencement date. 2530.202-2 (a) & (b)(1). So, the initial period ends the day before the one-year anniversary.