If an ERISA-governed pension plan does not provide that a participant may change an annuity that began, the plan does not recognize as a QDRO an order that tries to change the annuity.
“If a participant dies after the annuity starting date, the spouse to whom the participant was married on the annuity starting date is entitled to the QJSA protection under the plan. The spouse is entitled to this protection . . . even if the participant and spouse are not married on the date of the participant’s death, except as provided in a QDRO.” 26 C.F.R. § 1.401(a)-20/Q&A-25(b)(3) https://www.ecfr.gov/current/title-26/section-1.401(a)-20.
See also, for example, Jordan v. Federal Express Corp., 116 F.3d 1005, 1009 (3d Cir. June 19, 1997) (“In response [to a domestic-relations order], Federal Express canceled Linda Jordan’s [who was the participant’s spouse as at the annuity starting date] right to receive the [survivor] benefits under the plans without either increasing [participant John Paul] Jordan’s monthly benefits or designating Patricia Jordan [the participant’s current spouse] as the new beneficiary [survivor annuitant].”) (emphasis added).
DSG, consider (perhaps turning on which one, if either, is your client or your client’s client) whether the divorcing parties might negotiate and adjust property interests other than the commenced pension annuity to reflect that the husband’s pension annuity was lessened by providing a survivor portion (or that the nonparticipant obtained a survivor annuity). Likewise, consider how much or how little value the then-wife puts on her survivor annuity. Her personal sense of its value could be more than or less than what an actuary, economist, financial planner, or other adviser says the or a value is. And one might consider the creditworthiness of the pension obligor.
This is not advice to anyone.