fmsinc

Do they have to be "old" terminated employees? What about "young" or "middle aged" terminated emplolyees?

Are you goint to terminate participation by all presently employed part-time workers, or only new hires? What if a part-timer goes to 21 hours and then drops to 18, and then to 24? Oh, the paperwork, the accounting, the disgruntled employees. Would what you plan impact only the Sponsor's matching payments, or would the Participant's deferrals be terminated as well. Is it part time or part-time. One is an adjective and one is an adverb. Get it wrong and somebody will sue you.

1. I don't understand why the Pension Protection Act or 2006, 29 CFR 2530.206(c) doesn't apply. It permits the entry of post-mortem QDROs. https://www.ecfr.gov/current/title-29/subtitle-B/chapter-XXV/subchapter-D/part-2530/subpart-C/section-2530.206#p-2530.206(a) 2. By what authority does a Plan decide that it will only offer QPSA benefits and not QJSA benefits? 3. We also have the reality is that a QDRO is not required if the JAD contains all of the information required by law. CAN A JAD = ERISA Qualified Plans All you need for a court order, even a Judgment of Absolute Divorce, to be treated as a “Domestic Relations Order” (which, when approved, that is, “qualified”, by the Plan Administrator, becomes a “Qualified Domestic Relations Order) is: 29 U.S. Code §1056(d)(3)(C) provides: “(C) A domestic relations order meets the requirements of this subparagraph only if such order clearly specifies— (i) the name and the last known mailing address (if any) of the participant and the name and mailing address of each alternate payee covered by the order, (ii) the amount or percentage of the participant’s benefits to be paid by the plan to each such alternate payee, or the manner in which such amount or percentage is to be determined, (iii) the number of payments or period to which such order applies, and (iv) each plan to which such order applies.” 26 U.S. Code §414(p)(2) provides: “(2) Order must clearly specify certain facts. A domestic relations order meets the requirements of this paragraph only if such order clearly specifies— (A) the name and the last known mailing address (if any) of the participant and the name and mailing address of each alternate payee covered by the order, (B) the amount or percentage of the participant’s benefits to be paid by the plan to each such alternate payee, or the manner in which such amount or percentage is to be determined, (C) the number of payments or period to which such order applies, and (D) each plan to which such order applies.” Practice Pointer: So make sure that the JAD, or the PSA which will be incorporated into the JAD, include all of the foregoing information, and you will have a skimpy but valid QDRO. Practice Pointer: Use the following paragraph in your Agreements. I don't know for sure if it will help. It's what we call a "chicken soup" provision. What is a "chicken soup" provision you ask? The Rabbi is eulogizing the dear departed at the funeral service when suddenly an old lady in the back jumps up and, with a thick Yiddish accent, says..."So give him some chicken soup!" The Rabbi, somewhat flustered, responds that the person is deceased and that chicken soup is not going to help him. The old lady replies, "Vell, it vouldn't hoyt." So a chicken soup provision may not help, but it voudn't hoyt.” "In the absence of any contrary agreement of the parties set forth elsewhere in this Agreement, in the event of the death of a party, and in the further event that the deceased party has, by document executed prior to the execution of this Agreement, designated the surviving party as a beneficiary of any past, present or future interest in a life insurance or annuity policy, or as a beneficiary or recipient of any past, present or future death or survivor benefit or other amounts payable to the surviving party in connection with any past present or future interest in any pension plan, profit sharing plan, retirement plan, annuity contract, IRA, SEP-IRA, 401(k) plan, 403(b) plan, Federal Thrift Savings Plan, tax deferred income or savings or investment plan, deferred compensation plan, or any other tax deferral or pension or retirement plan or account, or any other defined benefit or defined contribution plans in which the party participates, then in any of such events, and notwithstanding such designation by the deceased party, the surviving party hereby irrevocably waives and relinquishes any and all rights (not provided to him/her by the express terms of this Agreement) which he/she might have as a beneficiary or as a surviving spouse or as a surviving former spouse or otherwise to receive the proceeds of any such life insurance or annuity policy, or to receive any death or survivor benefit or other amounts payable in connection with any such pension, profit-sharing, retirement, annuity, IRA, SEP-IRA, 401(k), 403(b), Thrift Savings Plan, tax deferred income or savings or investment plan, deferred compensation plan, or similar tax deferral or retirement or pension plan or account; or any other defined benefit or defined contribution plans in which the party participates, and the surviving party does hereby irrevocably assign any rights he/she might have to receive such proceeds, benefits or amounts to the estate of the deceased party for distribution pursuant to the Last Will and Testament of the deceased party, or if the deceased party dies intestate, for distribution in accordance with the laws of intestacy. Each party shall execute any document required: (i) to permit the other party to change any beneficiary designation described hereinabove; or, (ii) to waive any right to be treated as a survivor or surviving spouse of the other party; or, (iii) to consent to the jurisdiction of a court of competent jurisdiction to treat the surviving party as a “constructive trustee” for the use and benefit of the estate of the deceased party." See Yale-New Haven Hospital v. Nicholls, No. 3:12-cv-01319-WWE, United States District Court, D. Connecticut (2013): “The Court finds the September 5, 2008 Superior Court dissolution of marriage judgment, which included approval of a property settlement agreement, to be a qualified domestic relations order in that it substantially complies with 29 U.S.C. § 1056(d)(3)(B)(i). See id at 444. Indeed, Section 1056(d)(3)(B)(ii) specifically includes approvals of property settlement agreements within the definition of "domestic relations order." As the property settlement agreement designates that "the husband shall transfer to [Claire M. Nicholls] one half of that portion of his PENSION and RETIREMENT ACCOUNTS, which were accumulated during the marriage," Claire M. Nicholls is entitled to these assets. Specifically, Claire M. Nicholls "shall share, in proportion to her ownership interest in the asset, in all earnings, gains, losses, appreciation, and/or depreciation, due to market activity from the date of the final decree for dissolution of marriage to the date of the actual assignment and transfer." (Emphasis supplied.) This case was appealed to the United States Court of Appeals, 2nd Circuit, 788 F.3d 79 (2015), https://scholar.google.com/scholar_case?case=5234149702570753003&q=yale+new+haven+hospital+v+nicholls&hl=en&lr=lang_en&as_sdt=6,33&as_vis=1 The Court of Appeals held: “The Settlement Agreement does not constitute a QDRO because it fails to satisfy the requirements of 29 U.S.C. §1056(d). In particular, the agreement does not "clearly specif[y]" (1) a mailing address for either Claire Nicholls or Mr. Nicholls, see 29 U.S.C. § 1056(d)(3)(C)(I), or (2) the plans to which it applies, see id. § 1056(d)(3)(C)(iv).” but that two posthumous nunc pro tunc Orders did constitute valid QDROs. “Domestic relations orders entered after the death of the plan participant can be QDROs. In the Pension Protection Act of 2006, Congress made clear that a QDRO will not fail solely because of the time at which it is issued, see Pub. L. No. 109-280, § 1001, 120 Stat. 780 (2006), although several of our sister circuits had already reached that conclusion, see, e.g., Files v. ExxonMobil Pension Plan, 428 F.3d 478, 490-91 (3d Cir. 2005) (finding that a posthumous order constituted a QDRO), cert. denied, 547 U.S. 1160 (2006); Patton v. Denver Post Corp., 326 F.3d 1148, 1153-54 (10th Cir. 2003) (same); Hogan v. Raytheon Co., 302 F.3d 854, 857 (8th Cir. 2002) (same); Trs. of Dirs. Guild of Am.-Producer Pension Benefits Plans v. Tise, 234 F.3d 415, 421-23 (9th Cir. 2000) (same).” See also Mattingly v. Hoge, 260 F. App'x 776, 779 (6th Cir. 2008), where the trial court found that the Divorce Judgment contained all of the information needed for it to be a QDRO - https://casetext.com/case/mattingly-v-hoge-2 where the trial court found that the Divorce Judgment contained all of the information needed for it to be a QDRO. In Festini-Steele v. Exxonmobil Corporation, No. 20-1052, __F.App’x__, 2021 WL 629755 (10th Cir. Feb. 18, 2021), - https://scholar.google.com/scholar_case?case=9213427610449703594&q=festini+steele+v+exxonmobil+corporation&hl=en&as_sdt=20000006 Plaintiff-Appellant Festini-Steele claims a Decree of Dissolution of Marriage (“Decree”) is a Qualified Domestic Relations Order (“QDRO”) under ERISA that entitles her to proceeds of a group life insurance policy that her ex-husband, Steele, held through Defendant ExxonMobil Corporation. To qualify as a QDRO, a domestic relations order must meet four statutory requirements: (i) the name and the last known mailing address (if any) of the participant and the name and mailing address of each alternate payee covered by the order, (ii) the amount or percentage of the participant’s benefits to be paid by the plan to each such alternate payee, or the manner in which such amount or percentage is to be determined, (iii) the number of payments or period to which such order applies, and (iv) each plan to which such order applies.§ 1056(d)(3)(C). N.B. 29 USC §1056(d)(3)(B)ii) provides: “(ii) the term “domestic relations order” means any judgment, decree, or order (including approval of a property settlement agreement) which— (I) relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child, or other dependent of a participant, and (II) is made pursuant to a State domestic relations law (including a community property law).” See Sun Life Assurance Company of Canada v. Jackson, Case No. 3:14-cv-41, United States Court of Appeals, 6th Circuit, 877 F.3d 698 (2017), holding that a Judgment of Divorce complied with the requirements of 29 U.S.C. § 1056(d)(3)(C) and was therefore a QDRO. See the 2016 decision in Cunningham v. Hebert, Case No. 14 C 9292, United States District Court, N.D. Illinois, Eastern Division. November 1, 2016 - that you can find at: https://scholar.google.com/scholar_case?case=11964931026017663772&q=cunningham+v.+hebert&hl=en&as_sdt=3,29 discussing whether or not the divorce decree satisfied the statutory requirements for a QDRO (no), whether Federal preemption superseded the Settlement Agreement, the terms of which had the former spouse waiving her rights to her former husband’s 401(k) (yes), and whether a constructive trust should be imposed upon the 401(k) plan assets in the hands of the former spouse for the use and benefit of the estate of the decedent (no)? See the 2017 case of Lawson v. Lawson, 570 B.R. 563 (2017). Another case where the JAD was held to constitute a QDRO is Teenor v. LeBlanc, Case No. 18-cv-12364, United States District Court, E.D. Michigan, Southern Division (2019). https://scholar.google.com/scholar_case?case=1984404314460477397&q=Teenor+v.+LeBlanc&hl=en&as_sdt=20000006 Metropolitan Life v. Beatrice and Sarah McDonald, US District Court, E.D. of Michigan, Case No. 2:17-cv-11912, decided on June 10, 2019. https://scholar.google.com/scholar_case?case=14843170933717622715&hl=en&lr=lang_en&as_sdt=6,33&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:12484640753426065479:AAGBfm1agvHLwT5aWZ_N6PDZrK7iWFqV8A Let's say that Leon and Sarah divorce. The Marital Settlement Agreement (MSA) provides that Sarah will be named as the beneficiary of Leon's employer provided life insurance. Leon names his new girlfriend, Beatrice, as the beneficiary and then dies. No QDRO is ever prepared, submitted to the Plan Administrator, or approved. Under existing law dealing with ERISA preemption, the Plan Administrator, in the absence of a QDRO, would be obligated to follow the Participant's written beneficiary designation and pay the proceeds to Beatrice. But what if the MSA, or more correctly, the JAD incorporating the MSA, contains all of the information necessary to make it a valid QDRO? Then Beatrice would be out of luck and Sarah would receive the proceeds. This same rule applies to employer provided retirement and pension plans governed by ERISA, but mostly not to state or county plans. Good case. In Securian Life Insurance Company v. McAlister, et al, Case No. 6:24-cv-00161-MTK, United States District Court, D. Oregon (February 21, 2025), the decedent, Kenneth McAlister, participated in an employer sponsored, ERISA qualified, life insurance plan. The players are Kenneth’s wife at the time of his death, Mercedes, his former wife, Debra, and the minor child of the marriage of Kenneth and Debra, Rachel. The equivalent of a Divorce Decree between Kenneth and Debra - “. . . . ordered Mr. McAlister to make monthly child support payments until each child turned eighteen years old, or if the child was still in school, then until she turned twenty-one years old. [Divorce Decree] at 6. Mr. McAlister was required to "obtain and maintain a life insurance policy on [his] life with face value coverage of not less than $100,000.00 in full force and effect naming the child or children as primary beneficiary or beneficiaries." Id. at 7-8. He was required to maintain the life insurance policy "until all child support under this Judgment has been fully paid[.]" Id. at 7. The [Divorce Decree] also stated that "[a] constructive trust is imposed over the proceeds of any insurance owned by [Mr. McAlister] at the time of [his] death . . . if said insurance is in force, but another beneficiary is designated to receive said funds." Id. at 8.” But, the beneficiary named in the policy at time of his death was Kenneth’s current wife, Mercedes. Following Kenneth’s death - “[Mercedes] moves for a declaratory judgment that she is entitled to priority of the life insurance proceeds because she is the policy's designated beneficiary. [Debra] moves for a declaratory judgment that she, as legal guardian of [Rachel, the child of Kenneth and Debra], is entitled to a portion of the life insurance proceeds to provide child support for [Rachel], as mandated by the [Divorce Decree]. For the reasons explained below, the Court finds that the [Divorce Decree] is a Qualified Domestic Relations Order ("QDRO") which triggers the exception to the anti-assignment provision of ERISA, elevating Mr. McAlister's [Kenneth’s] child support obligations above [Mercedes] designated beneficiary status.” The court held: “[Mercedes] contends that [Debra’s Divorce Decree] does not satisfy the QDRO requirements. The Court finds that [Debra's Divorce Decree] is a QDRO because it substantially complies with the requirements of § 1056(d)(3)(C). Each statutory requirement at issue is discussed in turn. “The first statutory requirement is that the DRO specify the name and the last known mailing address of the participant and of the alternate payee(s) covered by the order. 29 U.S.C. § 1056(d)(3)(C)(i). Here, the [Divorce Decree] specifies the name and last known mailing address of the plan participant, Mr. McAlister. Regarding the payee, the [Divorce Decree] awards physical custody of [Rachel] (as a minor child) to both parents. The names and addressed of [Rachel’s] parents, Mr. McAlister and [Debra] are listed throughout the [Divorce Decree]. See [Divorce Decree] at 14-16. As [Rachel's] parents, these addresses aid in the identification of the payee. The [Divorced Decree] also includes [Rachel’s] full name and age. Courts "have liberally interpreted the address requirement for a valid QDRO in light of its purpose as an aid [to] plan administrators in identifying and locating alternate payees under a QDRO." Stewart, 207 F.3d at 1151 (alteration original). The first statutory requirement is satisfied. “The next requirement is that the DRO specify "the amount or percentage of the participant's benefits to be paid by the plan to each such alternate payee, or the manner in which such amount or percentage is to be determined." 29 U.S.C. § 1056(d)(3)(C)(ii). The [Divorce Decree] specifies that "[Mr. McAlister] shall immediately obtain and maintain a life insurance policy on [his] life with face value coverage of not less than $100,000.00 in full force and effect naming the child or children as primary beneficiary or beneficiaries." [Divorce Decree] at 7-8. This requirement is satisfied. “Third, the DRO must specify "the number of payments or period to which such order applies[.]" 29 U.S.C. § 1056(d)(3)(C)(iii). Life insurance is customarily paid in a single lump sum, and the [Divorce Decree] here does not specify otherwise. Accordingly, this requirement is satisfied. Stewart, 207 F.3d at 1152 ("because no periodic payments were contemplated, there was no need . . . to determine the number of payments affected by the order"). “Finally, the DRO must specify "each plan to which such order applies." 29 U.S.C. § 1056(d)(3)(C). In Hartford Life & Accident Ins. Co. v. Valois, the legal separation agreement ("LSA") at issue only mentioned "a policy of life insurance". No. 23-3286, 2024 WL 4678055 (9th Cir. Nov. 5, 2024) (unpublished). However, because "the decedent had but one such policy—the one under the Hartford Plan," . . . [t]he LSA clearly require[d] the decedent to name E.K. as the sole beneficiary on that policy." Id. Holding, "where it is clear which plan is implicated, the LSA substantially complies with ERISA's specificity requirements and is a QDRO." Id. Here, the [Divorce Decree] required Mr. McAlister to obtain and maintain a life insurance policy for the benefit of his children. [Divorce Decree] at 7-8. [Mercedes] has not presented evidence of another life insurance policy which this provision in the [Divorce Decree] could possibly refer to. A plan administrator would therefore have no difficulty determining that the [Divorce Decree] refers to the Securian Plan and that the funds should be distributed to McAlister's minor child [Rachel]. “The Court finds that the [Divorced Decree] substantially complies with the requirements of § 1056(d)(3)(C) and that the remaining requirements of § 1056(d) are met. The [Divorce Decree] is a QDRO as a matter of law.” Rachel gets her child support. See Hartford Life & Accident Ins. Co. v. Valois, No. 23-3286, __ F. App’x __, 2024 WL 4678055 (9th Cir. Nov. 5, 2024) at https://cdn.ca9.uscourts.gov/datastore/memoranda/2024/11/05/23-3286.pdf

One has to wonder what idiots came up the concept of a self-certification. Create a rule that can be circumvented and people will do just that. When it comes to Military Survivor Benefit Plan ("SBP") annuities if the Former Spouse remarries before age 55 the entitlement to the SBP is suspended (not terminated as is the case with CSRS and FERS) but may be reinstated if the marriage ends in divorce of the death of the new spouse. So guess what happens? The Former Spouse remarries before age 55, then divorces the new spouse before age 55 and remarries after age 55. How easy is that? In Brown v. Continental Airlines, Inc., 647 F. 3d 221 (5th Cir., 2011) - https://scholar.google.com/scholar_case?case=4019345202025914766&q=brown+v.+continental+airlines&hl=en&as_sdt=20000003 Continental alleged that a number of pilots and their spouses obtained "sham" divorces for the purpose of obtaining lump sum pension distributions from the Continental Pilots Retirement Plan that they otherwise could not have received without the pilots' separating from their employment with Continental. The pilots were allegedly acting out of concern about the financial stability of Continental and the fear that the Plan might be turned over to the PBGC and that their retirement benefits would be substantially reduced. By divorcing, the pilots were able to obtain QDROs from state courts that assigned 100% (or, in one instance, 90%) of the pilots' pension benefits to their respective former spouses. The Plan provides that, upon divorce, if the pilot is at least 50 years old (as all the pilots in this case were), a former spouse to whom pension benefits are assigned can elect to receive those benefits in a lump sum even though the pilot continues to work at Continental. The former spouses presented the QDROs to Continental and requested payment of lump-sum pension benefits. After the former spouses received the benefits, the couples remarried. Continental sought to obtain restitution under ERISA Section 502(a)(3). The Court of Appeals noted that ERISA § 206(d)(3) limits the QDRO qualification determination to whether the state court decree calls for benefit payments outside the terms of the Plan. It rejected Continental’s expanded reading of §206, concluding that plan administrators may not question the good faith intent of Participants submitting QDROs for qualification. In my area of pension and retirement law, preparing QDROs, I regularly see Participants taking maximum loans and self certified hardship distributions to reduce the amount in the Plan available to a prospective Alternate Payee. So either get rid of self certification or expect to be played.

NUA: Net Unrealized Appreciation – is a special provision from qualified retirement plans that allows the employee to elect to treat company stock differently from all other assets in the plan when making a distribution from the plan. Essentially, you pay ordinary income tax on the basis, original cost, of the stock in your employer’s (actually former employer’s) company, and then place the stock in a taxable brokerage account. At this point, any gains on the stock are subject only to capital gains tax (rather than ordinary income tax, which is a much higher rate). The trick is that you can only do this maneuver one time, and the distribution must be in a lump sum of all your 401(k) account holdings. Everything in the account that is not company stock can be rolled over into an IRA and maintain tax deferral as usual. It’s critical to note that this can be the only distribution of funds from the account. If you were to distribute any amount, even a small amount from the employer plan in a previous year, you are no longer eligible to use the NUA provision on this employer account. Tip o' the hat to Jim Blankenship

Furnish them to who?

Are you talking about an ERISA qualified plan? Were payments from a defined benefit plan being made to the Alternate Payee at the time of the Alternate Payee's death? Why would not such payments terminate at the death of the Alternate payee? Or are you dealing with a lump sum an a annuitized payment from a defined contribution plan per Secure 2.0? Or are you dealing with FERS or CSRS where 5 CFR 838.237(b) applies? I am sorry for being confused.

Follow up. See these appellate decisions that support my comments above: 152 A.D.3d 765 (2017) 59 N.Y.S.3d 421 2017 NY Slip Op 05818 In the Matter of ANTHONY J. CHRISTIE, Deceased. DIANE D. EDWARDS-McMAHON, Respondent; SANDRA L. CHRISTIE, Appellant. BOARD OF TRUSTEES OF THE INDIANA STATE COUNCIL OF PLASTERERS & CEMENT MASONS PENSION FUND, Plaintiff(s), v. ASHLEE STEFFENS, KENDRA D. STEFFENS, and BRIAN KINKADE in his capacity as Interim Director of the MISSOURI DEPARTMENT OF SOCIAL SERVICES, Defendant(s). Case No. 4:12CV513 JCH. United States District Court, E.D. Missouri, Eastern Division. (October 22, 2012) 963 F.3d 1197 (2020) Wanda CROWDER, Plaintiff-Appellant, v. DELTA AIR LINES, INC., et al., Defendants, The Delta Air Lines, Inc. Family-Care Savings Plan, the Administrative Committee of Delta Air Lines, Inc., Fidelity Workplace Services, LLC, Defendants-Appellees. No. 19-12342. United States Court of Appeals, Eleventh Circuit. (June 26, 2020) and 943 F.Supp.2d 130 (2013) John VANDERKAM and Gaylyn Dieringer, Plaintiffs, v. PENSION BENEFIT GUARANTY CORPORATION and Melissa VanderKam, Defendants. Civil Action No. 09-cv-1907 (RLW). United States District Court, District of Columbia. (May 7, 2013). .

Fidelity acts as the Third Party Administrator ("TPA") of 2 HP defined contribution plans. They are - HP Inc. 401(k) Plan HP Inc. Deferred Profit-Sharing Plan ...and 3 defined benefit plans - EDS Retirement Plan HP Inc. Cash Account Pension Plan HP Inc. Retirement Plan We can ignore the 2 defined contribution plans and assume that you are likely dealing with the HP Inc, Retirement Plan. Attached is a copy of the instructions that Fidelity will provide to those of us who prepare QDROs. I you look at page 16 you will see: "1. If the Participant has commenced benefits prior to the qualification of the Order, the Alternate Payee will receive survivor benefits from the Plan following the death of the Participant ONLY IF the Participant elected a benefit form that provides for survivor benefits and named the Alternate Payee as beneficiary at commencement. The Order cannot alter a previously elected benefit form or beneficiary designation." What this means is that timing is everything. If your husband retired before the divorce and elected you as the recipient of his Qualified Joint and Survivor Annuity following his death (and assuming that you survive his death), that election is locked in when he commences receipt of his benefits (goes into pay status). It might have been subject to change by a QDRO if he was not yet in pay status, but that ship has sailed. Note that the language quoted above also appears in the "Cash Account Pension Plan" instructions and in the "EDS Plan" instructions as well. Federal and most State laws require that a spouse will receive a survivor annuity automatically unless waived. See, e.g., ERISA § 205(a)-(d), 29 U.S.C. § 1055(a)-(d), and see REA 26 CFR § 1.401(a)-20, Answer 25(b)(3) that provides: "(3) Divorce. If a participant divorces his spouse prior to the annuity starting date, any elections made while the participant was married to his former spouse remain valid, unless otherwise provided in a QDRO, or unless the participant changes them or is remarried. 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 (unless waived and consented to by such spouse) even if the participant and spouse are not married on the date of the participant's death, except as provided in a QDRO." What this mean is that if an employee retires while still married, the spouse will receive a survivor annuity (unless waived by the spouse in advance) and no subsequent divorce will undo that mandatory election regardless of whether or not the parties or the judge have addressed it in the divorce proceeding. You would not know this, and most attorneys do not understand this. The rule is different with respect to non-ERISA Plans. For example,Federal retirement Plans under FERS, CSRS, FSPS or the Military, a survivor annuity elected by the employee at retirement and while still married will not survive the divorce (unless the employee/Member was retired and in pay status or died prior to divorce) and must be reinstated with an appropriate court order, a Court Order Acceptable for Processing (“COAP”) or a Military Retired Pay Division Order (“MRPDO”). What you two have waived is the receipt of any share of each other's retirement annuity (paid from and after the Participant goes into pay status and terminating on the Participant's death). But when the Participant dies, the survivor annuity will pass to whoever was elected at the time of retirement. You are getting it whether you wanted it or not. lFidelity is not the easiest TPA to deal with, but if the Plan Documents do not address your issue and allow something that ERISA does not provide, you are likely not going to succeed. There may be some wrinkle in your state law that may help, but you are going to have to find an attorney experienced in QDRO preparation to help you. And, BTW, you have no appeal from your divorce case. Neither party or the judge made any mistakes reviewable by an appellate court. You find yourself in this predicament as a result of your own actions and the refusal of Fidelity to do what you want. If you sue anybody it will be Fidelity and you will wind up in Federal Court and spend tens of thousands of dollars fighting this battle. And just so you know, the survivor annuity benefit is not free. It is paid for by an actuarial deduction from the retirement annuity computed by an actuary hired by Fidelity for that purpose. And that cost is coming "off the top" so both of you are contributing to the cost of each other's survivor annuity. That should make this outcome more palatable. Workaround: You two can make a deal to pay whatever you receive in QJSA benefits back to the deceased party's estate (less the state and Federal taxes you were required to pay on the survivor annuity income) for distribution to you desired beneficiary(ies). Or you can hire an actuary to determine the present value of the QJSA to be received by the survivor, estimate and deduct taxes, have the potential survivors make lump sum payments to other party, and just keep the survivor annuity. This is not very accurate since you don't know the exact amount of the survivor annuity or when payments will start or the life expectancy of the Participant and of the survivor. So the actuary will use life expectancy tables and historical interest rates to discount the value of a stream of payments. But it's better than nothing. David HP DP Instructions.pdf

Good article - https://www.mayerbrown.com/en/insights/publications/2025/08/revisiting-the-state-of-the-law-in-erisa-forfeitures-cases

The law of the State where the divorce was granted will determine whether or not the filing of an appeal stays the finality of the divorce. In Maryland, my home state, you must file a Notice of Appeal within 30 days of the entry of the judgment by the Clerk of the Court. If you want to stay the divorce judgment from going into effect, you need to file a separate motion. This might include a Motion to Alter or Amend the Judgment (Rule 2-534), a Motion for New Trial (Rule 2-533), a Motion to Revise Judgment (Rule 2-535), or a Motion to Stay Pending Appeal (Rule 2-632). Many appeals do not challenge the validity of the divorce itself but relate to other matters that will not vacate a valid Judgment of Absolute Divorce, e.g. the failure of the trial court to enter a QDRO. The continuation of a employer sponsored medical plan will depend on the timing of the divorce. COBRA protects the rights of the former spouse to a continuation of coverage if she makes a timely election. COBRA also requires the Plan to provide notice to the soon to be former spouse that her coverage will be terminated unless she makes such an election. If you cancel the former spouse's medical coverage under the circumstances you describe, and without further inquiry, you do so at your peril. Notify your medical insurance carrier of the situation. Hire a lawyer is you don't have one. David

Two decisions from the highest appellate court in Maryland: Blaine v. Blaine, 336 Md. 49, 646 A. 2d 413 (1994) - "Even where the language of a statute is plain and unambiguous, we may look elsewhere to divine legislative intent; the plain meaning rule is not rigid and does not require us to read legislative provisions in rote fashion and in isolation. Motor Vehicle Admin. v. Shrader, 324 Md. 454, 463, 597 A.2d 939 (1991)." Rosemann v. Salsbury, 412 Md. 308, 987 A.2d 48 (2010) - "If the language of the statute is clear and unambiguous, we need look no further than the language of the statute to ascertain the Legislature's intent. Anderson v. Council of Unit Owners of the Gables on Tuckerman Condominium, 404 Md. 560, 572, 948 A.2d 11, 19 (2008)." ....and they have no shame. I was on the losing side of the Blaine case. This was NOT what I learned in law school about interpretation of legislative enactments. Here is a recent and very comprehensive discussion from the Congressional Research Service. https://www.congress.gov/crs-product/R45153 David

Died? Cold. Harsh. How about: "departed this life", perished, croaked, expired, flat-lined, "passed away","passed on", "bit the dust", "kicked the bucket", "went belly-up", "gave up the ghost", "bought the farm", "gone to glory", "shuffled off this mortal coil", "moved beneath the grass", "mortis est", "gone to his eternal rest", "met his maker", "pushing up daisies", "augered in", "cashed in his chips", "ate a Twinkie", "living on a farm", "riding the pale horse", "shaking hands with Elvis", "six feet under", "sleeping with the fishes".

In a terrible accident at a railroad crossing, a train smashed into a car and pushed it nearly four hundred yards down the track. Though no one was killed, the driver of the car was injured and took the train company to court. At the trial, the engineer insisted that he had given the driver ample warning by waving his lantern back and forth for nearly a minute. He even stood and convincingly demonstrated how he'd done it. The jury believed his story, and the suit against the train company was decided in it's favor and against the driver of the car. "Congratulations," the lawyer for the train company said to the engineer when it was over. "You did superbly under cross-examination." "Thanks," he said, "but the other attorney sure had me worried." "How's that?" the lawyer asked. "I was afraid he was going to ask if the lantern was lit!"

In preparing QDROs it is typical for the parties or the court to value a defined contribution plan account as of a "Valuation Date". It might be the date the parties separated, the date the signed their Marital Settlement Agreement, the date of entry of the Judgment of Absolute Divorce, or some other mutually agreed upon date. The amount in the account as of the Valuation Date will commonly be adjusted for gains, losses and investment experience from the Valuation Date to the date the alternate payee's share is transferred to him/her. Such a transfers might be: (i) when the Alternate Payee's share is segregated into a separate account for his/her benefit; or, (ii) when the Alternate Payee's share is rolled over to the Alternate Payee's IRA or other eligible retirement account; or (iii) when the Alternate Payee takes a taxable distribution from all or a part of the balance to which he/she is entitled. The moment that the in-house Plan Administrator hires or changes a Third Party Administrator ("TPA") the TPA will no longer have access to any records that predate the TPA's involvement and will no longer be able to compute gains, losses and investment experience retroactively. The situation is the same if the Form 5500s were never filed and if the Plan Administrator does not have the records necessary to prepare them at this late date. The answers to most of your questions are online. David