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What are your questions? Was deceased married at the time of his/her death? Was he/she in litigation for a divorce? Had a QDRO been entered by a court at the time of the divorce? What was exact name of the plan to which the QDRO was directed? Did he/she have a Last Will and Testament? Did he/she set up a trust for the disabled child prior to his/her death? Was it a special needs trust? Was the deceased receiving SSI or SSDI for the disabled child? Was the deceased receiving child support or other public benefits for the disabled child? Is the disabled child eligible for or receiving Medicaid? What were the living arrangements for the disabled child at the time of the deceased party's death? Did the deceased die under circumstance where his/her estate might have a claim for wrongful death? Did the deceased have a last will and testament? Did the deceased have life insurance on his/her life? Identify all of the assets and liabilities of the deceased? Did the deceased have beneficiary designations with respect to all of his/her pension, retirement, investment assets, bank accounts, ete? Does the deceased have a name so I can stop referring to him/her as he/she? Prepare a family tree. Prepare a timeline of relevant events.

If there is nobody named as the beneficiary of the 401(k), then the Plan will normally pay it to the person named in the order of precedence set forth in the Plan Documents, of if there is no order of precedence, then it will be paid in accordance with the applicable state law re: testate or intestate distribution. Or the Plan may file an interpleader action and deposit the funds into the Registry of the Court and wash their hands of the matter. In your case it looks like the child of the decedent will be the one to receive the money (assuming he/she is the only child), but somebody will have to be named as guardian of the property of the child if he/she is a minor, and that guardian is likely to be the child's mother. DSG

It is pretty clear that whoever was hired to prepare the QDRO didn't know what he/she was doing. It is not your job to correct it. Find another QDRO preparer. Attached are some documents that may be useful to your new preparer. The people at TIAA are very helpful. See https://www.tiaa.org/public/support/faqs/retirement-divorce DA_QDRO.docIA_QDRO.docIRA_QDRO.docQDRO_approval_guidelines.pdfQDRO_IRA_LetterofInstruction.docQDRO_RetirementAccumulations.pdf David

I cannot cite chapter and verse like you fine folks, but my thinking is as follows: Assuming that the Plan Administrator is not required to determine whether or not the beneficiary designation is or is not ambiguous until the happening of an "event" such as the death of the Participant (when it is then too late to address it with the now deceased Participant), and if the Plan Administrator now decides post-mortem that the beneficiary designation is in fact ambiguous, would not the Plan's Order or Precedence kick in at that point, or if the Plan does not have an Order of Precedence, wouldn't the state law with respect to testate or intestate distribution then apply? Once the Plan Administrator has determined that the beneficiary designation is ambiguous, I don't think the brothers can make an agreement that would supersede the Order of Precedence or the applicable state law. In other words, is the beneficiary designation is ambiguous it cannot form the basis for any distribution at all. I would must humbly suggest that the Plan has no good options. It's too late to correct what I see as negligence of the Plan to review beneficiary designations at a time when an ambiguity can be addressed. I would not be surprised if ERISA or the Plan document would reject my common sense view of the matter, but in my humble opinion the Plan runs the risk of paying twice. That's why we have interpleader. Too bad if the Plan Sponsor doesn't want to incur legal fees. On the other hand, we have recent case law dealing with substantial compliance, Packaging Corporation of America Thrift Plan for Hourly Employees v.Langdon v. Copiskey, 166 F.4th 645 (2026) that you can find at - https://scholar.google.com/scholar_case?case=1182260352496528209&q=packaging+corporation+of+america&hl=en&as_sdt=4,112,127 See attached Memo I recently prepared. Does it apply to this fact pattern. Only the Shadow knows. A WORD ABOUT SUBSTANTIAL COMPLIANCE.pdf David

There is not enough information provided to respond to ConnieStorer. I would need to see the ENTIRE divorce decree and the ENTIRE draft QDRO and EXACT name of the Plan so I can determine is it is ERISA qualified, or a Federal, State, County, Municipal, City, or local plan and the State where the case is pending and the State law applicable to pension and retirement plans. This is not always the same as the forum state. For example: In the Matter of the Marriage of Morris, No. 40978-3-III, Court of Appeals of Washington, Division Three, Unpublished, (April 14, 2026) - https://scholar.google.com/scholar_case?case=2690551257535625082&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:14880692104701005079:ADi0EEUaQFSNuk2i3r1tCfq2RXAZ&html=&pos=0&folt=kw deals with a conflict between two states that approach the allocation of a State Sponsored defined benefit (pension) Plan in different ways. One state declares that the Alternate Payee’s share is to be paid as what we could call a “separate interest”, and the other requires the Alternate Payee’s share to be paid as what we would call a “shared interest” (if, as and when). whether or not ConnieStorer represents the Plan Administrator Every time I try to respond sort of inquiry I will eventually find out that there were a few matters that were not mentioned and that I have wasted my time. This does not look like a question of whether or not the QDRO can be implemented. The question is what the parties intended and what the language means and what should the Plan Administrator do to avoid being put in the middle. Here are two memos that might be helpful on the gains and losses issue. David GAINS AND LOSSES AND INVESTMENT EXPERIENCE 02-04-2025.pdfOWNERSHIP INTEREST - 5 CFR 838.237(b)(3) - 01-08-2026.pdf

Was this an ERISA qualified Plan? Are you talking about a QPSA? Was a lump sum the default or was it an option? You referred to "election forms". What are the benefit options available to the surviving spouse in those election forms? Who was at fault for the failure to finalize the election forms for 2 years? What do the Plan Documents say about delayed payments? See Stephens v. US Airways Group, Inc., 644 F. 3d 437 (USCA DC Cir. 2011) - unreasonable delay in payment of lump sum benefits entitled the claimants to interest. The delay in this case was 45 days. On remand read Stevens v. US Airways Group, Inc. 102 F.Supp.3d 222 (USCD DC 2015). Read 29 CFR § 4219.32 - Interest on overdue, defaulted and overpaid withdrawal liability - at https://www.law.cornell.edu/cfr/text/29/4219.32 David

>In many states the law is that a divorce will automatically terminate (lapse) a bequest to a former spouse.> >Many state have adopted anti-lapse states such as Maryland where the applicable law is: "(a) Unless a contrary intent is expressly indicated in the will, a legacy may not lapse or fail because of the death of a legatee after the execution of the will but prior to the death of the testator if the legatee is: (1) Actually and specifically named as legatee; (2) Described or in any manner referred to, designated, or identified as legatee in the will; or (3) A member of a class in whose favor a legacy is made. (b) A legacy described in subsection (a) of this section shall have the same effect and operation in law to direct the distribution of the property directly from the estate of the person who owned the property to those persons who would have taken the property if the legatee had died, testate or intestate, owning the property. (c) Creditors of the deceased legatee shall have no interest in the property, whether the claim is based on contract, tort, tax obligations, or any other item." >Most competently prepared Wills will include a provision that "if the parties shall die in a common disaster under circumstances of their deaths cannot be determined, it shall be conclusively presumed that Mary predeceased John." Suppose Mary is presumed to die first. Is she still John's spouse? >On the other hand is you are dealing with a TSP they will follow the instructions set forth in their form of beneficiary designation, however, their regulations say: “A will, prenuptial agreement, separation agreement, property settlement agreement, or court order will not override either a beneficiary designation or the order of precedence." >In my practice I run into many plan rules that will afford benefits to spouse but not to former spouses unless the employee enters pay status prior to the divorce. Example: Many police, firefighters and correctional officer pension plans. >In South Carolina the parties can sign a Marital Settlement Agreement whereby the parties will waive any claim against the other party's estate or pursuant to the other party's Last Will and Testament or pursuant to the applicable laws of intestate distribution, and this agreement will be approved by the court and will actually be incorporated into a Court Order, BUT the parties still are required to wait until the expiration of 12 months from their separation before the actual divorce becomes final. What happens is one of them die? Is the other party still a "spouse" or "wife" or "husband"? How will the Agreement impact the outcome? >Lawyers get sued all the time for not covering all of the possible bases. The Roman philosopher, Seneca, said: "Thinking everything might happen; anticipate everything" That's why lawyers have OCD. Here is a painting by Peter Paul Rubens of Seneca at the time of his death. .

Are you dealing with an independent contractor who would not be eligible to participate in your 401(k)? https://www.irs.gov/businesses/small-businesses-self-employed/independent-contractor-self-employed-or-employee

First you need to understand that a DC loan is not a loan at all, at least not in the way we think of loans from a lender. If you take a loan from your 401(k) you are borrowing the money from yourself. When you pay it back you are paying it to yourself and you are paying the interest to yourself. It is more like taking $20 from the cookie jar in the kitchen on Monday and paying back $21 the following Monday. The only penalty is that the outstanding "loan" will not be adjusted for earnings or losses - so for all intents and purposes it is not part of your vested accounts. If you are dealing with QDROs you need to state whether or not the computation of the Alternate Payee's share includes (disregards) the loan or excludes (net out) the loan. If you retire and take a distribution the distribution will be net of the loan balance remaining due and will be treated as a taxable event. David

Peter Gulia: Gulp. I have struggled with this issue for quite some time. See two Memos I have in my files. TRANSFERRING THE ALTERNATE PAYEE'S ERISA PENSION AND RETIREMENT.pdfBoggs and Terminable Interest Etc.pdf The variables are: (i) the PPA of 2006; (ii) defined benefit plan vs. defined contribution plan; (iii) Federal preemption of state law or agreement of the parties or Judgment of Divorce. I seem to be in the minority in thinking that Boggs doesn't mean what everybody else thinks it means. Thanks for your input. David

29 CFR Section 2530.206(c) states that "(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." We all know what this means or do we. It certainly means that a QDRO can be entered for the benefit of the Alternate Payee if the Participant had died before a QDRO is approved. But does it also mean that the estate of the Alternate Payee can obtain a QDRO if the Alternate Payee dies before a QDRO has been entered? We know this means that, with respect to defined benefit an defined contribution plans, a QDRO can be entered in favor of an Alternate Payee if the Participant has died before the QDRO was approved. But can the Alternate Payee's estate obtain a QDRO when it is the Alternate Payee that has died before the QDRO has been entered and you are dealing with a ERISA qualified defined contribution plan? Thanks, David

I assume you have the attached incomprehensible documents. There are two issues. First, how to account for gains, losses and investment experience from the valuation date to the date of transfer to the Alternate Payee. It would seem that whether you allocate the account as a as a percentage or as a hard $ amount, in all accounts other than DA accounts the gains and losses will be addressed automatically. With respect to DA account the valuation date will be date of transfer. This is exactly what most IRA custodians will do, that is, not make any adjustment between any two dates. Second, how to account for additional deferrals made post divorce. If you allocate by $ amount in all but DA accounts the matter will self adjust. I don't see any way to allocate DA accounts in a way that will disregard post divorce deferrals. You can contact TIAA consultants at 1-800-842-2252. Maybe they will have an answer for you. If so, please post it here. David DA_QDRO.docIRA_QDRO.docQDRO_IRA_LetterofInstruction.docIA_QDRO.docQDRO_approval_guidelines.pdfQDRO_RetirementAccumulations.pdf

PLENTY OF PEOPLE LIVE AND WANT TO LIVE IN TRAILERS, MOBILE HOMES, GEODESIC DOMES, DOUBLE WIDES, RVS, MOTOR HOMES, CAMPERS, VANS, AND TENTS AND IT IS THEIR PRIMARY RESIDENCE AND, IF IT IS NOT AFFIXED TO THE GROUND, ALLOWS THEM TO TRAVEL IN ORDER TO CONDUCT THEIR BUSINESS. ONE MAN'S CEILING IS ANOTHER MAN'S FLOOR.

A participant and his spouse become divorced prior to the participant's annuity starting date under a defined benefit plan. I ASSUME THIS IS AN ERISA QUALIFIED PLAN AND THAT UNLESS WAIVED BY THE ALTERNATE PAYEE THE WIFE BECAME ENTITLED TO QJSA AND A QPSA, AND THAT THE ANNUITY PAID TO THE PARTICIPANT WAS REDUCED TO PAY THE COST OF THE QJSA AND QPSA. Unlike many plans, benefits are paid from current plan assets (instead of from annuity contracts purchased from an insurance company). I DON'T SEE WHY THIS MATTERS. The participant and his ex-spouse agreed upon a proposed division of his benefit, based upon the fraction of the months in which the couple was married over the participant's entire period of service with the employer. WHERE WAS THIS AGREEMENT LOCATED? IN A MARITAL SETTLEMENT AGREEMENT OR IN THE JUDGMENT OF DIVORCE ON IN THE 11 YEARS LATE QDRO? However, no formal QDRO was entered by a court until 11 years after the participant's annuity starting. THE PLAN IS NOT REQUIRED TO MAKE ANY PAYMENTS UNTIL IT RECEIVES AND HAS QUALIFIED A QDRO. Nevertheless, the participant commenced receiving reduced pension payments based upon the parties' agreed division as of his annuity starting date, in the form of a ten-year certain and life annuity. SO ARE YOU SAYING THAT THE WIFE WAIVED A QJSA AND A QPSA AND AGREED TO A TEN YEAR CERTAIN AND LIFE ANNUITY? The QDRO reaffirms the division between the parties and entitles the ex-spouse to a portion of the participant's total retirement benefit (under the agreed-upon formula) retroactive to his annuity starting date. AT SOME POINT THE PARTICIPANT MUST HAVE APPLIED FOR HIS RETIREMENT BENEFITS. WHAT DOES THAT DOCUMENT HAVE TO SAY ABOUT THE OPTIONS THAT WERE AVAILABLE AND SELECTED? IN THE 40 YEARS THAT I HAVE BEEN PREPARING QDROS I HAVE NEVER SEEN A PLAN MAKE RETROACTIVE PAYMENTS TO THE ALTERNATE PAYEE WHEN THE PAYMENTS WERE ALREADY PAID OUT TO THE PARTICIPANT. Based on DOL Regulations at 29 C.F.R. Section 2530.206, the timing of the entry of the QDRO does not adversely impact its qualification. YOU ARE MISREADING 29 C.F.R. Section 2530.206 THAT ADDRESSES AND RESTATES THE PENSION PROTECTION ACT OF 2006. HERE ARE SOME CASES TO REVIEW: Thomas v. Sutherland at https://scholar.google.com/scholar_case?case=1601430218420084129&q=Thomas+v.+Sutherland+&hl=en&as_sdt=20006 where the U.S. District Court in Utah held: "Although there is no case law precisely on point, the supporting material suggests that this is the appropriate result. The Code of Federal Regulations provides that a DRO does not fail to be treated as a QDRO solely because of the time at which it is issued. 29 C.F.R. 2530.206(c)(1). This includes orders issued after the participant's death, and occasions where a divorced spouse no longer meets the technical definition of a "surviving spouse" under the terms of the plan. 29 C.F.R. 2530.206(c)(1)(ex. 1 & 2). In addition, the Eighth Circuit has found that a domestic relations order can be qualified posthumously if notice is given and the order is filed during the eighteen-month period permitted under ERISA to secure a QDRO. Hogan v. Raytheon, 302 F.3d 854, 857 (8th Cir. 2002). Although different than the case at hand, the trend has been to enforce the terms of an otherwise valid QDRO as it was intended to be enforced, so long as notice was given and the order was filed during the period permitted under ERISA." (Emphasis supplied.) See also, Yale-New Haven Hospital v. Nicholls, 788 F.3d 79, 85 (2d Cir. 2015) where the Court held that two nunc pro tunc Orders issued after the death of the Participant were valid QDROs. Said the Court: “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. Exxon Mobil 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).” Miletello v. R M R Mechanical Inc., 921 F.3d 493 (USCA 5th Cir. 2019) cited Yale-New Haven Hospital v. Nicholls, supra. I AM NOT AWARE OF ANY CASE WHERE THE PPA WAS CITED AS AUTHORITY FOR THE PROPOSITION THAT A PLAN THAT A PLAN MUST PAY ARREARS TO AN ALTERNATE PAYEE THAT HAVE ALREADY BEEN PAID TO THE PARTICIPANT. THE SURVIVOR ANNUITY IS ANOTHER MATTER SINCE THE ALTERNATE PAYEE MUST BE ALIVE IN ORDER TO RECEIVE THAT FUTURE BENEFIT. In addition, the QDRO provides for payment to the ex-spouse for the participant's lifetime (since the 10-year guarantee period has expired), which is a fomr of payment provided under the Plan document. Moreover, case law which is contolling in the circuit in which the Plan is administered and in which the participant and former spouse reside do not compel a different result. This is my question: given the eleven-year period that has elapsed since the annuity starting date, is the payment due to the spouse for the period beginning on the annuity starting date and ending on the date on which the first prospective payment begins under the QDRO, permitted to be increased by interest or some other manner of compensatiing the former spouse for the delay in commencing the benefit payments to her? If the benefit had been provided under an annuity contract, I would be inclined to say no. However, since the benefit is provided from the assets of the plan's trust, I am inclined to conclude that some measure of earnings is due to the former spouse. Also, as a corollary to my question, if you agree that the spouse should be entitled to interest or earnings for the period of the delay in commencing payments to her, how should the plan arrive at an appropriate level of interest or measure of earnings? WITH THE BENEFIT OF AI: 29 CFR § 2530.206 is a Department of Labor regulation that clarifies the timing and order of issuance of Domestic Relations Orders (DROs) under ERISA. It specifically implements section 1001 of the Pension Protection Act of 2006 (PPA) to ensure that a DRO does not fail to be a Qualified Domestic Relations Order (QDRO) simply because of when it was issued. When applied to "retroactive" payments or look-back periods, the interaction between 29 CFR § 2530.206 and ERISA's broader QDRO rules (specifically ERISA § 206(d)(3)) dictates how a plan administrator handles benefits that accumulated or were paid out before the QDRO was finalized. Here is a breakdown of how the regulation impacts retroactive rights and payments. 1. Timing Does Not Disqualify Retroactive Orders The core purpose of § 2530.206 is to protect an alternate payee’s right to secure a QDRO even after major lifecycle or plan milestones have passed. Under § 2530.206(c), an order will not fail to be a QDRO solely because it is issued: After the participant's Annuity Starting Date (when retirement payments have already commenced). After the participant’s death. After a divorce has already been finalized (revising or establishing rights post-decree). Because the regulation explicitly validates post-event orders, courts can draft domestic relations orders that look backward to assign benefits that accrued or should have been paid from an earlier date (e.g., the date of separation or divorce), even if the participant is already retired or deceased. 2. The 18-Month Segregation Period & Retroactivity When a plan administrator receives a DRO, ERISA section 206(d)(3)(H) establishes a strict framework for preserving retroactive amounts while the plan evaluates whether the order qualifies as a QDRO: Segregation of Funds: The plan administrator must separately account for or segregate the amounts that would have been payable to the alternate payee during the determination period if the order had been treated as a QDRO from day one. The 18-Month Window: The plan has up to 18 months (beginning on the date the first payment would be bumpy under the order) to resolve the order's status. Retroactive Payout: If the order is determined to be a QDRO within that 18-month window, the plan administrator must pay the segregated amounts (plus interest) retroactively to the alternate payee. Expiration of the Window: If the 18 months expire without a QDRO determination, the administrator must release the segregated funds to the person who would have received them otherwise (usually the participant). If the order is qualified after the 18 months, the QDRO only applies prospectively, meaning the alternate payee loses the right to recover those specific segregated historical payments directly from the plan. 3. Crucial Limitations on "Retroactive" Plan Demands While § 2530.206 permits an order to be issued late, it does not override ERISA’s fundamental prohibitions on altering a plan's structural or actuarial obligations. An order seeking retroactive payments will fail to be a QDRO if it violates the following: No Increased Actuarial Value A retroactive order cannot force a plan to pay out more total money than it would have under the participant's original benefit structure. If a participant has been drawing a single-life annuity for five years, a retroactive QDRO cannot force the plan to recalculate past distributions in a way that increases the plan's total financial liability. No Re-Annuitization of Past Payments If an order is issued after the annuity starting date, it generally can only allocate a portion of the ongoing monthly annuity payments currently being made to the participant. An order can state that an alternate payee is entitled to a percentage of the participant's future monthly checks. However, if the order attempts to completely recalculate past payments or change the fundamental form of the benefit (e.g., converting a participant's active single-life annuity into a joint and survivor annuity based on the alternate payee's life expectancy), it will be rejected under ERISA § 206(d)(3)(D) because it requires a "type or form of benefit" not otherwise provided. Summary for Drafting and Enforcement If a domestic relations order seeks to capture "retroactive" amounts (e.g., past pension payments that the participant pocketed entirely during a lengthy divorce dispute), the plan itself may not be legally allowed to claw back those funds from the participant to pay the alternate payee. Instead, the remedy for true retroactive payments typically follows one of two paths: Prospective Offsets: The QDRO is structured to give the alternate payee an increased share of the participant's future monthly payments until the past arrearage is mathematically satisfied. Direct Judgment: The domestic relations court enters a separate money judgment directly against the participant for the past-due amounts, rather than trying to force the pension plan to pay retroactively outside of the 18-month segregation rule. Thanks in advance!

If you want to assess blame, it's likely on the attorney for the Alternate Payee. He/she is guilty of malpractice and also a violation of the Rules of Professional Conduct relating to competence. But the point is that the money is no longer in the 401(k) and a would assume that 60 days have elapsed from the date of distribution and you cannot restore it to the 401(k) or to an IRA or other eligible retirement account. In most states the source of the obligation to transfer pension and retirement benefits is in the Marital Settlement Agreement ("MSA") signed by the parties and incorporated but not merged in the Judgment of Divorce, or, if there is no MSA, then the Judgment of Divorce itself. The QDRO is just an enforcement tool like an attachment or garnishment. So what you owe her is the amount that was to be paid as of the "Valuation Date" adjusted for gains, losses and investment experience from the Valuation Date to the Date of Distribution to the Alternate Payee, less the state and Federal income taxes that she will have to pay at her marginal tax rate. Not your marginal rate. I am not sure what you meant when you said you "liquidated" your 401(k). If you actually meant that you rolled it over to an IRA or other eligible retirement account, then you can obtain a new RBO or QDRO and pay your Former Spouse from the IRA or other eligible retirement account and it will be free of tax consequences unless she decides to take a distribution and if that happens the tax consequences are on her. David