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Is this actually a QDRO? Meaning it has already been approved by the plan administrator? If so, the plan administrator erred, because one of the requirements for a DRO to be a QDRO is that it may not require increased benefits, see IRC 414(p)(3)(B) and ERISA 206(d)(3)(D)(ii). The plan administrator should have adopted a set of QDRO procedures, I know that our document provider has a checklist to determine if the DRO can be a QDRO. One of the items on that checklist is "Does the order require the plan to provide greater benefits than would be available to the participant without regard to the QDRO?" and if the answer is Yes then the DRO can't be qualified. Did the plan administrator follow their procedures? If it is not a QDRO, meaning the plan administrator has not yet qualified the DRO, then it should be rejected.

Correct. In such a case, a prudent PA would approve the qualification with the condition that the amount payable cannot exceed the amount available; the PA might (probably?) require the draft DRO be amended to include that phrasing. Otherwise, the PA does not care how much is awarded to the AP.

That 34 days’ shutdown delayed some guidance, but I don’t remember that practitioners were particularly upset.

I am in David Rigby's camp. I would qualify the order subject to the interpretation that the assignment is $125,000 as of the assignment date, and then adjusted, but any contributions after the assignment date are disregarded. This allows the affected parties to assess the mistake. If they decide it is the best/intended outcome with respect to the plan benefits, it minimizes the fallout for everyone. If one or both are dissatisfied when apprised of the mistake, then they appeal the interpretation to the administrator and get a ruling that the order is not qualified because the condition for qualification (correct interpretation of the language) fails. A checklist is fine, and a good approach to QDRO administration, but knowledge plus good judgment serve fiduciaries better.

Consider also the timing: the next 2 weeks are holiday weeks (meaning very little gets done in a normal year), and this is the end of an administration (meaning little regulatory/guidance work would be issued over the next month -- or more). Last shutdown was December 22 2018 - January 25, 2019 -- maybe somebody knows what happened then?

What about review of VCP applications, and determination letter applications for terminated plans and the upcoming DB cycle 3 restatement deadline for modified language adopters? VCPs and plan termination d-letters already face a serious backlog and time delay and now add on the cycle 3 and who knows what that does to timing. Maybe those reviews continue as critical, I don't know but I'm guessing not.

As @fmsinc suggested, the surviving former spouse may not be entitled to anything, if the deceased participant had elected a single life annuity and was already in pay status. In a single life annuity, benefit distributions end at the participant's death. You should clarify whether, at the time of death, the deceased participant was still employed, or whether they had retired and begun to receive their benefit. If the former (participant still employed or not yet in pay status), then some plans (not all) may pay survivor benefits that a QDRO could allocate to the prospective alternate payee. If the latter (participant was already in pay status), and the participant was actually receiving a single life annuity, then the benefit ended with the participant's death and there is likely no remaining benefit to allocate to anyone, so the prospective alternate payee would be paying lawyers to work on a QDRO that will divide nothing. Also, it helps to clarify your terminology a bit. As others have suggested, what you have described is not a QDRO, but a draft or proposed DRO. A draft or proposed DRO (a draft that parties submit to the plan administrator to confirm that it would be accepted as a QDRO if entered by the court) doesn't get the "qualified" (or "Q") designation until two things happen: (1) it becomes an order, i.e., the court enters the order, and (2) the plan determines it is qualified, i.e., the plan reviews the entered order and determines it satisfies the statutory requirements in ERISA section 206(d)(3). The question about whether the state court can validly enter a DRO posthumously is an interesting question of state law, but it is purely academic until you settle the practical question of whether there is a benefit for a QDRO to divide. Turning to the plan administrator's role in all of this, if the state court enters a DRO and the plan determines that the DRO is qualified (i.e., a QDRO), then, as far as ERISA is concerned, the plan administrator does not have an obligation to research state law to determine whether the state court had the authority to issue the DRO posthumously in the first place. If the plan administrator is aware that a QDRO is disputed, then it's usually good practice to communicate to the parties that the plan is holding the distributions until the parties resolve their dispute, and if it gets dragged to court, file an interpleader action in a federal court with jurisdiction. Just my two cents, not legal advice.

The comments from @fmsinc, relating to making sure your plan is covered, are important. However, many non-ERISA plans include (within the plan document) provisions that are similar to the ERISA-required QDRO language. If your plan is non-ERISA, you should still identify the relevant plan provisions.

I need you first to confirm that the "QDRO" you are asking about relates to a pension or retirement plan that fall under the Federal law the Employee Retirement Income Security Act of 1974 ("ERISA"). You can verify that the plan is in fact under ERISA at https://www.efast.dol.gov/5500Search/ where you can search for the Plan Sponsor or the Plan Name. Plans under Federal plan such as FERS, CSRS, FSRS, US Military, and most State, County, Municipal Plans are not under ERISA and are referred to as, for example "Eligible Domestic Relations Orders", or "Domestic Relations Orders", or "Retirement Benefits Orders" ARE NOT ERISA qualified. The word "Qualified" will not be present. Assuming your QDRO is actually an ERISA qualified plan, you are in luck. The Pension Protection Act of 2006 regulations provide: 29 CFR 2530.206 - Time and order of issuance of domestic relations orders (a) Scope. This section implements section 1001 of the Pension Protection Act of 2006 by clarifying certain timing issues with respect to domestic relations orders and qualified domestic relations orders under the Employee Retirement Income Security Act of 1974, as amended (ERISA), 29 U.S.C. 1001 et seq. * * * * * (c) Timing. (1) Subject to paragraph (d)(1) of this section, a domestic relations order shall not fail to be treated as a qualified domestic relations order solely because of the time at which it is issued. (2) The rule described in paragraph (c)(1) of this section is illustrated by the following examples: Example 1. Orders issued after death. Participant and Spouse divorce, and the administrator of Participant's plan receives a domestic relations order, but the administrator finds the order deficient and determines that it is not a QDRO. Shortly thereafter, Participant dies while actively employed. A second domestic relations order correcting the defects in the first order is subsequently submitted to the plan. The second order does not fail to be treated as a QDRO solely because it is issued after the death of the Participant." https://www.ecfr.gov/current/title-29/subtitle-B/chapter-XXV/subchapter-D/part-2530/subpart-C/section-2530.206#p-2530.206(a) Some recent cases dealing with this issue are: Thomas v. Sutherland at https://scholar.google.com/scholar_case?case=1601430218420084129&q=Thomas+v.+Sutherland+&hl=en&as_sdt=20006 and Yale-New Haven Hospital v. Nicholls, 788 F.3d 79, 85 (2d Cir. 2015) and Miletello v. R M R Mechanical Inc., 921 F.3d 493 (USCA 5th Cir. 2019) I can provide more citations if you need them. The bottom line is that the death of Court has jurisdiction under Federal law to issue a post mortem (posthumous) QDRO following the death of the Participant. There are some states like my home state, Maryland, where the court was held to have jurisdiction to issue a posthumous Eligible Domestic Relations Order with respect to a Participant in the Maryland State Retirement and Pension and Retirement System. BUT, if the Participant was already retired and had elected a single life annuity, and if the retirement took place during the marriage, that means that the Alternate Payee must have waived her right to insist on her statutorily required qualified joint and survivor annuity - that is an annuity to the Participant during his life and a survivor annuity for the Alternate Payee (a spouse or former spouse) during her lifetime. If the retirement took place after the divorce and before the QDRO had been entered, then I am not sure that a post-mortem QDRO could be effective to transform the single life annuity to include a survivor annuity for a former spouse. That would require some research. Another possible issue is if the Participant remarried and then retired - his surivivor annuity would vest in his new spouse and the former spouse would be outta luck.