fmsinc

This firm keeps popping up and is highly rated online. I don't know them and cannot comment. But give them a call. If they cannot help they should be able to refer you to someone who can. https://www.petroskelaw.com/long-island-qdros-lawyer/

I will get back to you in a day or so.

If you tell me in what city and state you live I will see if I can find someone to help you. David

I don't understand who you are. You say in the first sentence that the "Participant was a non-union truck driver". Are you the Participant? If the QDRO was approved by the Plan Administrator and is still sitting in the 401(k), you don't need a financial planner to roll over the money. You would just contact the Plan Administrator and ask how they handle that. Generally they will have a form for you to fill out telling them where they are to send the money. Normally that will be an IRA account, but if you have an existing 401(k) you can roll the money into that existing IRA. The rollover transfer will be tax free. You will also have the option to request a taxable distribution, that is, money paid directly to you instead of a rollover. You will pay taxes on the rollover, but no 10% early withdrawal penalty. The Plan will withhold 20% for Federal tax purposes and that amount will be on the tax returns filed for the year in which you received the distribution. Another issue is whether you get only the amount listed in the QDRO, or do you receive gains, losses and investment experience on your share from the date of the Agreement (if any) or the date of the Judgment of Divorce through the date the funds are transferred to you by rollover or distribution. If this is covered in the QDRO, that's good news. If not, there is plenty of law that says that an adjustment for gains, losses and investment income is implicit. See attached. The next question will be whether the Plan Administrator can track those gains, losses and investment experience. Most 401(k) Plan can do so, but some limit how far back they can go. Good luck. David Goldberg Gains, Losses, Ownership Interest and Constructive Trust.pdf

Is this a QDRO for an ERISA qualified plan? Or are you using "QDRO" as a generic term? There are about 980,000 pension and retirement plans in the US. Most are ERISA qualified, but there are thousands of Federal, State, County and Municipal plans, and International agency plans as well, that are not controlled by ERISA. So it would be helpful if you would identify the Plan you are dealing with - full name please (Lockheed has 25+ plans and a few are not qualified under ERISA but the company chooses to enforce them as if they were and even used ERISA lingo.) Whether it's a defined benefit plan or a defined contribution Plan, either (i) the estate of the intended Alternate Payee will need to make a claim for pension or retirement benefits not taken by the decedent; or (ii) you will have to file an interpleader action, deposit the unclaimed retirement benefits into the registry of the court, and let the parties fight it out.

1) All references are to Ohio jurisdiction besides ERISA; WE DON'T TALK ABOUT SPOUSES OR EX SPOUSES. THE PROPER TERMS TERMS ARE PARTICIPANT AND ALTERNATE PAYEE. 2) Divorce of 20 years was finalized in 2007 with each waiving rights to each others pension;survivor rights were not stipulated in decree; SURVIVOR BENEFITS UNDER ERISA DO NOT SURVIVE THE DIVORCE UNLESS A QDRO IS SUBMITTED TO THE PLAN ADMINISTRATOR. A QDRO WILL NOT BE SIGNED BY THE COURT UNLESS IT IS AUTHORIZED BY THE AGREEMENT OF THE PARTIES OR WAS ORDERED BY THE COURT IN THE DECREE OF DIVORCE. IF BOTH PARTIES WAIVED CLAIMS, THEN THERE ARE NO SURVIVOR BENEFITS TO BE AWARDED. IF SURVIVOR BENEFITS ARE NOT ADDRESSED IN THE DIVORCE DECREE, THEN THEY ARE NOT AWARDED. 3) Ex husband passed in July 2018 with exspouse naming me as beneficiary for all benefits including 401k, pension, etc; WHO IS EX SPOUSE? THE DEAD PARTICIPANT? WHERE ARE YOU NAMED AS BENEFICIARY? IN THE PLAN BENEFICIARY DESIGNATION? WAS THE PARTICIPANT RETIRED AT THE TIME OF HIS DEATH? WAS HIS RETIREMENT ANNUITY BEING REDUCED BY THE ACTUARIAL COST OF PROVIDING A SURVIVOR ANNUITY? THIS IS NOT AN UNCOMMON EVENT, BUT THE RULE IS THE SAME - A PARTICIPANT FAILS TO CHANGE HIS/HER BENEFICIARY. IF YOU WERE NOT AWARDED THE SURVIVOR ANNUITY YOU DON'T GET IT. IF HE DIED BEFORE RETIREMENT, THEN THERE IS NO POST RETIREMENT SURVIVOR ANNUITY, ONLY PRE-RETIREMENT BENEFITS THAT ARE USUALLY RATHER MEAGER. 4) Former employer refuses to provide application for survivor benefits stating that since ex was not married at time of death, there are no survivor benefits to be paid and the plan does not allow for payments to dependent children (two children-currently 15 and 21); SOUNDS RIGHT. 5) In December 2018, I was appointed the administrator of estate in order to resolve estate on behalf of children and subsequently requested copy of employment file. Employer responded with an incomplete file and has failed to respond to subsequent requests; 6) It is my understanding that if our domestic court judge approved a QDRO designating me or children as estate designated survivor then former employer would be required to honor QDRO. "IF" IS A BIG WORD. ON WHAT BASIS WOULD THE COURT APPROVE THE QDRO LONG AFTER THE DIVORCE IF BOTH PARTIES WAIVED THEIR RIGHTS? QDROS DON'T PROVIDE SURVIVOR BENEFITS TO CHILDREN. THEY EXIST AND ARE DESIGNED TO TRANSFER PENSION BENEFITS (RETIREMENT AND SURVIVOR ANNUITY BENEFITS) BETWEEN SPOUSES IN CONNECTION WITH DIVORCE PROCEEDING. IF THERE ARE BENEFITS PAYABLE TO THE CHILDREN, THEN THAT WOULD BE UNDER ANOTHER SECTION OF THE PLAN HAVING NOTHING DO TO WITH QDROS. However, I do not know how to proceed on unraveling and pursue a claim on behalf of myself or estate. I know that I need an attorney but I dont know if I need an ERISA, domestic court or probate attorney or all of the above. YOU NEED TO FIND A LAWYER THAT UNDERSTANDS ERISA. THE FIRST THING YOU NEED IS A COPY OF THE PLAN. DON'T RELY ON THE FACT THAT THE PARTICIPANT FAILED TO REMOVE YOU AS THE BENEFICIARY OF THE SURVIVOR ANNUITY. ALL OF THE ABOVE WILL NOT APPLY TO THE 401(K). IF THE PARTICIPANT NEVER REMOVED YOU AS BENEFICIARY OF THE 401(K) YOU MAY BE ENTITLED TO RECEIVE THE ACCOUNT BALANCE. OR IT MAY PASS TO THE PARTICIPANT'S ESTATE AND PASS TO HIS TESTAMENTARY BENEFICIARIES UNDER HIS WILL, OR, IN THE ABSENCE OF A WILL, ACCORDING TO THE LAWS OF INTESTACY TO HIS STATUTORY HEIRS. IT SHOULD ALL BE COVERED IN THE PLAN DOCUMENTS. Any guidance would be appreciated. Thank you Survivor

I didn't say if the ex-spouse is the Participant or the Alternate Payee. I will assume the ex-spouse is the Participant. If it these are ERISA qualified plans, you can submit a post mortem QDRO and it will be entered per the Pension Protection Act of 2006, sent to the Plan Administrator, and be enforceable with respect to the 401(k) and the survivor annuity, if any, provided in the defined benefit plan. David

1. Some states have statutes of limitations with respect to submitting QDROs. 2. Some states have statutes of limitations that don't apply if the Judgment of Absolute Divorce reserves jurisdiction to enter QDRO. 3. In an ERISA defined benefit plan if the Participant remarries and retires, the new spouse will receive the survivor annuity benefit and the former spouse will lose that benefit. Hopkins v. AT&T Global Information Solutions at http://scholar.google.com/scholar_case?case=9954117838131396049&q=hopkins+at%26T+global&hl=en&as_sdt=2,9 followed by the 5th Circuit in 1999 Rivers v. Central and South West Corporation at http://scholar.google.com/scholar_case?case=2296953953561556363&q=rivers+central+and+south+west&hl=en&as_sdt=2,9: “This Circuit agrees with the Fourth Circuit's decision in Hopkins and adopts its rationale. Rivers failed to protect her rights in Franklin's pension plan by neglecting to obtain a QDRO prior to Franklin's retirement date. Consequently, Franklin's pension benefits irrevocably vested in Mrs. Franklin on the date of his retirement and Rivers is forever barred from acquiring an interest in Franklin's pension plan.” To the same effect see Dahl v. Aerospace Employees’ Retirement Plan, a 2015 case from the U.S. District Court for the Eastern District of Virginia (and cases cited therein) - https://scholar.google.com/scholar_case?case=11696898122265878951&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt Other cases following Hopkins are collected at: http://scholar.google.com/scholar?q=%22Hopkins+v.+AT%26T%22+divorce&btnG=&hl=en&as_sdt=20000006 See also Vanderkam v. PBGC, 943 F. Supp.2d, 130 (2013) setting forth a thorough discussion of this issue. There are multiple outcomes depending on the state where the Judgment of Divorce was entered. In Maryland, for example, a QDRO is an enforcement tool, like a garnishment or an attachment and can be entered at any time. It if blatant malpractice for the attorney for the Alternate Payee not to submit the QDRO to the court at the time of the final hearing and to make sure it is entered and a certified copy sent to the Plan Administrator immediately after the divorce is granted.

Here is what a comprehensive QMCSO should look like. Use it as you deem appropriate. QMCSO - 01-07-12 in Word.doc

Your question is unclear. We don't value QDROs. We value defined benefit plans in most cases using the PBGC 4044 discount rates at https://www.pbgc.gov/prac/interest/ida. But we also have to assume a COLA rate, assume the age at which the Participant will retire, and use mortality tables like the UP-94 to determine the Participant's life expectancy. These valuations are generally made by actuaries. I am not aware of any actuaries that use the 417(e) mortality rates. Attached find a publication from the American Academy of Actuaries dealing with actuarial mortality assumptions. In most cases the computation are very speculative and State law will prefer an if, and and when allocation of pension benefits via a QDRO. David Actuarial Mortality Assumptions.pdf

The Plan Administrator is required to pay out the 401(k) to the named beneficiary. See the Supreme Court case of Kari E. Kennedy, Executrix v. Plan Administrator for Dupont Savings and Investment Plan, 129 S.Ct. 865 (2009) which you can find at - http://scholar.google.com/scholar_case?case=9882751476618008595&q=kennedy+dupont&hl=en&as_sdt=4,60 The factual statement does not say that the former spouse has a QDRO giving her rights to the 401(k) - so she is out of the picture, and the existing spouse does not have any superior rights in the 401(k) just by virtue of her being the surviving spouse. But neither would matter since ERISA does not give a spouse an automatic right to be the beneficiary of a 401(k). The Plan documents may make the spouse the default beneficiary, but that would be superseded by the actual beneficiary designation. Don't confuse the ERISA requirements with respect to QJSA and QPSA that are applicable only to defined benefit plans. If you have it, please post statutory or case law providing that a still married widow (not former spouse) is entitled to be the beneficiary of a defined contribution plan when the decedent has named another beneficiary.

Employer provided life insurance is subject to ERISA. I only know of a few states that have laws permitting a trial court to order a Participant to continue to carry life insurance for the benefit of an Alternate Payee. See: Rollins v. Metropolitan Life Insurance Company, 863 F.2d 1346 (7th Cir., 1988) - Indiana Head v. Metropolitan Life Insurance Company, 449 N.W.2d 449 (Minn., 1990) Perkins v. Stuemke, 223 Ill.App.3d 839, 585 N.E.2d 1125, 166 Ill.Dec. 103 (1992) Life insurance in generally agreed to by the parties to guarantee that the obligations of the agreement are fulfilled, e.g. payment of alimony and child support, college for the children, and also as a potentially cheaper substitute for a defined benefit plan. (Premiums are usually less than the actuarial cost of a defined benefit plan and the proceeds are tax free.) I have spent 32 years involved in preparing QDROs and studying ERISA as well as the laws and regulations governing all of the other Federal, State, County, City, and International agency Plans. There are over 980,000 pension and retirement plans in the USA. About 960,000 are covered by ERISA. You would do well to advise your client to work out a settlement.

In fact my dear friend, a company provide life insurance policy IS covered by ERISA. A little knowledge is a dangerous thing.

You have wasted my time by failing to state the fact clearly and correctly. I have no idea what you are talking about. And it's pretty clear that you did not read the materials I sent to you. https://youtu.be/dFaG8sKS3eg

What legal research have you done? Let me know the state in which the QDRO was issued, and the state in which you now live.

SEE MY RESPONSES IN ALL CAPS BOLDED. For the argument sake, IF "IFS AND BUTS" WERE CANDY AND NUTS WHAT A MERRY CHRISTMAS WE WOULD HAVE wife 2 also has obtained a QDRO to split the asset. But plan administrator refuse to approve. Nothing in ERISA says QDRO cannot be done while still married. THAT IS TRUE, BUT: (I) A QDRO DISTRIBUTION TO A SPOUSE CAN PRODUCE ENORMOUS ADVERSE TAX CONSEQUENCES - FULL TAXES PLUS 10% EARLY DISTRIBUTION PENALTY IF THE PARTICIPANT IS UNDER AGE 59 AND 1/2; AND, (II) THE ENDEAVOR TO MAKE A TRANSFER TO A CURRENT SPOUSE UNDER THESE CIRCUMSTANCES WOULD BE VIEWED AS A FRAUDULENT CONVEYANCE TO AVOID THE CLAIMS OF CREDITORS (THE FORMER SPOUSE) AND WOULD BE SET ASIDE; AND, (III) IN MANY STATES, INCLUDING MY HOME STATE, THE COURT HAS NO AUTHORITY/JURISDICTION TO ISSUE A QDRO EXCEPT IN CONNECTION WITH THE ENTRY OF A JUDGMENT OF ABSOLUTE DIVORCE, THE ENTRY OF A QDRO FOR A CURRENT SPOUSE THAT IS NOT INCIDENT TO THEIR DIVORCE IS NOT POSSIBLE EVEN THOUGH THEORETICALLY POSSIBLE UNDER ERISA. Instead, it expressly says a spouse could have a QDRO. I don’t see any reason why she should give up her right. In addition, the property right came from marriage, not from QDRO, which merely a mechanism to split marital assets or pre-existing right to the property. THE CONCEPT OF MARITAL PROPERTY DOES NOT EXIST IN THE ABSTRACT. IT COMES TO LIFE AND EXISTS ONLY IN CONNECTION WITH A DIVORCE AND AT THAT POINT EVERYTHING THE PARTIES HAVE ACQUIRED DURING THE MARRIAGE IS ON THE TABLE TO BE DIVIDED INCLUDING PENSION AND RETIREMENT BENEFITS. IF THE HUSBAND AND NEW WIFE DIVORCE, THEN THE NEW WIFE WILL HAVE A CLAIM TO A SHARE OF MARITAL PROPERTY (OR COMMUNITY PROPERTY AS IT IS KNOWN IN 8 STATES). Also, preparation of QDRO requires a basis. And one of the limitation is QDRO cannot ask for more than husband deserves. I DON'T KNOW WHERE YOU GET THIS. THE COURT ISSUING THE QDRO DECIDED WHAT THE FORMER SPOUSE WAS ENTITLED TO. IF YOU WANT TO CHALLENGE IT GO BACK TO THAT COURT. IF THE HUSBAND'S THEORY IS THAT YOUR NEW WIFE HAS SOME INTEREST IN THE 401(K) PLAN, YOU ARE GOING TO LOSE. Thus, husband has no right to his wife’s property and ex cannot have more that what husband has. NICE THEORY, BUT UNTRUE. Therefore, protection of wife 2’s interest fully comply with ERISA. WRONG. NEW WIFE HAS NO INTEREST, ONLY AN EXPECTANCY AS A BENEFICIARY IF THE HUSBAND DIES, AND IN MOST STATES THERE IS NO PRESUMPTION THAT IN THE EVENT OF A DIVORCE THE INTEREST OF THE HUSBAND WILL BE HALF OR ANY PARTICULAR PERCENTAGE. AND IN MOST STATES THE COURT IS NOT EVEN REQUIRED TO RECOGNIZE OR AWARD A MARITAL INTEREST OR RECOGNIZE A NON MARITAL INTEREST. Further, if you argue wife 2 has no right to the 401k, then we are getting into the area of constitutional property rights and equal protection. After all ERISA never says that wife 2 has only survivorship rights, but quite the opposite. EVEN IF WHAT YOU SAID HAS MERIT, WHICH IT DOES NOT, FIRST IN TIME IS FIRST IN RIGHT. THE FIRST LENDER WHO FILES A DEED OF TRUST/MORTGAGE AT THE COURTHOUSE HAS A FIRST CLAIM ON THE PROCEEDS OF THE SALE OF THE UNDERLYING PROPERTY. THE SECOND LENDER WHO FILES A SECOND DEED OF TRUST/HELOC STANDS BEHIND THE FIRST PARTY. IN YOUR CASE IT LOOKS LIKE THE EX-WIFE GOT TO THE COURTHOUSE FIRST SO THERE IS NOTHING LEFT FOR THE 2ND WIFE NO MATTER THAT THEORY YOU WISH TO PUT FORTH.

You are fighting a losing battle using concepts that have no application to how alimony arrears are collected using QDROS. Attached find a publication from the DOL. You will find that when a Plan Administrator receives a QDRO and is making a determination of whether to approve ("qualify") the QDRO: "Based on the foregoing, when a pension plan receives an order requiring that all or a part of the benefits payable with respect to a participant be distributed to an alternate payee, the plan administrator must determine that the judgment, decree or order is a "domestic relations order" within the meaning of section 206(d)(3)(B)(ii) of ERISA -- i.e., that it relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child or other dependent of the participant, and that it is made pursuant to a State domestic relations law by a State authority with jurisdiction over such matters. Additionally, the plan administrator must determine that the order is qualified under the requirements of section 206(d)(3)(B)(i) of ERISA. It is the view of the Department that the plan administrator is not required by section 206(d)(3) or any other provision of Title I to review the correctness of a determination by a competent State authority that an individual is a "spouse," "former spouse," "child," "other dependent" or “surviving spouse” of the participant under state domestic relations law." So the Plan Administrator is not required to consider any of your arguments...and they don't because they don't want to get drawn into a lawsuit. Your belief that the new wife has an "interest" in the husband's 401(k) plan just because she is named as a beneficiary is not correct. At best she has a possible contingent future expectancy, and that does not rise to the level of an "interest". There is lots of case law on this subject. Sorry the news is bad, but the new spouse has no interest in the 401(k), does not own it, cannot shield her husband's interest in his 401(k) by claiming that she is being victimized somehow. It's his 401(k) money and is subject to being garnished by use of a QDRO. He is the bad guy in this story. He violated a court order and justice has now prevailed as it should. I would hope the judge would have assessed prejudgment interest against him and ordered him to pay the former spouse's (ex wife) legal fees as well. He deserves to be slammed and his ex-wife deserves to be made whole. Let this be a lesson - don't mess with the courts and disobey their orders. The consequences can be very unpleasant. QDROs by DOL.pdf

Sorry. Being the beneficiary means nothing in this context. It's like me having a savings account and my current wife is named as the beneficiary if I die. Creditors can attach the money in the account. There is no "equitable" interest involved. That's just not the way it works. The former spouse is owed alimony arrears. She can collect that amount by whatever means are available, including garnishing his salary, attaching his solely owned real estate or motor vehicles, or using a QDRO to grab the money in his 401(k) Plan. We do this all the time. Your assumption that wife #2 being named as a beneficiary of the 401(k) gives her some rights and can shield the 401(k) from being taken with a QDRO to satisfy an alimony obligation is just simply wrong. If it were true, how easy it would be for someone with an alimony obligation to protect his assets. Even if he transferred the 401(k) money to his new wife (paying the taxes and penalties if the distribution were prior to age 59 and 1/2) the ex-wife could go after the new wife on the theory that he fraudulently conveyed assets to the new wife to avoid the just claims of creditors. Unless there is some wrinkle in your state law to the contrary, the ex-wife will get the money in the ex-husband's 401(k). You didn't say what state the court proceedings took place, but it pretty much doesn't matter since this issue is a matter of Federal law that preempts state law. It's right there in the section I cited to you. You have used the terms "401(k)" and "QDRO" and I hope you are not just using those terms generically (like Kleenex when it's really Puffs or Scotties) and it is really some other type of plan that would not be covered by ERISA. Like I said before, he should have paid his alimony. I don't see any court taking his side. The equities are all on the ex-wife's side. I don't even think the new wife even has what we call standing to set up in court to many any arguments at all. She is not a party. If the husband takes out his 401(k) and transfers it to another 401(k) or to an IRA the new wife has no say whatsoever. It doesn't become the new wife's money until he dies. If the new wife and the husband remains married, she is not a "former spouse". Like I said...he should have paid his alimony.

You are mixing apples and oranges. The ex-wife is a "former spouse" for purposes of dividing the 401(k) as "property" and by using a QDRO. But ERISA allows a QDRO to be used by a "former spouse" to collect child support and alimony arrears. 26 U.S.C. §414(p) provides: “(p) Qualified domestic relations order defined - For purposes of this subsection and section 401 (a)(13)— “(1) In general “(A) Qualified domestic relations order - The term “qualified domestic relations order” means a domestic relations order— (i) which creates or recognizes the existence of an alternate payee’s right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan, and (ii) with respect to which the requirements of paragraphs (2) and (3) are met. “(B) Domestic relations order - 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). The new wife is not a "former spouse" and had no rights to the 401(k) unless she becomes wife #2 or if the husband dies and she is his named beneficiary. And even if she becomes former spouse #2, if former spouse #1 gets the QDRO to the Plan (and it's approved) before former spouse #2, then former spouse #1 gets the money. Here is a link to an old but still valid article from an ABA publication http://www.americanbar.org/content/dam/aba/publishing/family_law_enewsletter/OrtizArticle.authcheckdam.pdf He should have paid his alimony. But there is more. Prior to 1-1-19, alimony was tax deductible by the payor and taxable to the payee. The TCJA of 2017 changed all of that and the payor cannot deduct the alimony and the payee need not pay taxes on it. Query: If the judgment for alimony was entered after 1-1-19, will the husband be able to deduct the alimony? Or will the payment be grandfathered under the old law? While the original alimony arose under a pre-TCJA court order (or Agreement), the new judgment did not arise until post-TCJA. There are no regs from the IRS available to answer this question. Another question is whether or not the ex-wife is entitled to interest on each and every payment not paid when due - that is, pre judgment interest. Attached find a Memo I prepared for a matter in Maryland. David Interest on Judgments for Unpaid Child Support and Alimony- 2017.pdf

SEE MY RESPONSES: Sorry thought I was helping by including history on how this mess is going, trying not to leave out info. Colorado- CO Rev Stat § 15-12-803 (2016) (III) As to all creditors, within one year after the decedent's death. IT LOOKS LIKE THEY ARE FILING A CLAIM AGAINST THE ESTATE IN HOPES OF HAVING THE COURT EITHER: (I) ISSUE A POST MORTEM (POSTHUMOUS) QDRO PER THE PENSION PROTECTION ACT OF 2006, GIVING THE EX WIFE THE LIFE INSURANCE PROCEEDS SHE WAS PROMISED IN THE DOCUMENT (JUDGMENT OF DIVORCE OR WRITTEN SETTLEMENT AGREEMENT), AND ALSO THE SURVIVOR ANNUITY BENEFITS UNDER HIS PENSION PLAN THAT I ASSUME WAS ALSO ORDERED BY THE JUDGMENT OF DIVORCE OR SETTLEMENT AGREEMENT); OR, (II) DECLARE THAT THE JUDGMENT OF DIVORCE ITSELF OR THE WRITTEN SETTLEMENT AGREEMENT MEETS ALL OF THE REQUIREMENTS OF ERISA AND THE REA AND SHOULD BE CONSIDERED TO BE QDROS FOR THE PURPOSES SET FORTH IN "(I). THE PROBLEM WITH "(II)" IS THAT THE DETERMINATION OF WHETHER IT'S A QDRO IS MADE BY THE PLAN ADMINISTRATOR AND NOT BY THE COURT. SO THE FIRST QUESTION IS WHETHER OR NOT THEY ARE PRECLUDED FROM DOING THE ABOVE BY THE COLORADO STATUTE OF LIMITATIONS AS IT APPLIES TO CLAIMS AGAINST THE ESTATE? IT MAY BE THAT THEY SHOULD HAVE FILED THEIR MOTIONS IN THE ORIGINAL DIVORCE CASE AND SERVED THE PERSONAL REPRESENTATIVE OF THE ESTATE RATHER THAN FILE A CLAIM IN THE ESTATE CASE. IT MAY BE THAT THEY HAVE ANOTHER OPTION OF CLAIMING THAT A QDRO BE ENTERED NUNC PRO TUNC (NOW FOR THEN)...OR MAYBE THEY HAVE DONE THAT ALSO. SEE ATTACHED MEMO RE: POST MORTEM AND NUNC PRO TUNC QDROS. Post Mortem & Nunc Pro Tunc QDROs.pdf Exxon’s Basic Life Insurance, SPD confirms it’s under ERISA, and the ex-wife is not fighting that this is an ERISA issue. My husband’s ex-wife is asking that her 2014 Divorce Papers, DO YOU MEAN A SETTLEMENT AGREEMENT, OR DO YOU MEAN THE JUDGMENT OF DIVORCE? which are missing the life insurance plan names and dollar amounts(2 of the main 4 QDRO requirements) to be considered a QDRO. In the life insurance section of the divorce papers it says “deceased should have ex-wife listed as beneficiary on all life insurance” There is nothing in the divorce papers about the pension or retirement plans, she waved those sections. IF THIS IS THE CASE I DON'T SEE HOW THEY HAVE ANY CLAIM AGAINST SURVIVOR BENEFITS, UNLESS HE RETIRED BEFORE HIS DIVORCE FROM THE EX-WIFE AND SHE WAS NAMED BY OPERATION OF LAW AS HI SURIVOR ANNUITY AND DID NOT WAIVE WITH THE COMPANY (NOT IN THE AGREEMENT). But it’s looking like her lawyer is starting to understand that the papers will not be considered a QDRO since they’re missing information. It’s been 1.5 years since my husband died. Her lawyer is asking the judge that all this time spent trying to find out the plan names and amounts be considered discovery so he can potentially sue the estate, which I never had to open and is outside the 1 year. So just wondering in cases where there is no QDRO, what do people try to do if there was a breach in contract from divorce papers? Trying to figure out how to prepare for when the funds are actually released to me, especially because her lawyer is already suing me for not voluntarily telling Exxon that I hand over the life insurance. NOTE THAT IN MOST STATES A SUIT AGAINST THE ESTATE WILL ONLY RELATE TO ASSETS OF THE ESTATE. ANYTHING THAT YOU AND YOUR HUSBAND OWNED JOINTLY OR AS TENANTS BY THE ENTIRETIES WILL PASS TO YOU BY OPERATION OF LAW OUTSIDE OF THE ESTATE, THAT IS, WILL NOT BE IN THE ESTATE. LIFE INSURANCE POLICY PROCEEDS WILL GO TO THE NAMED BENEFICIARY AS A MATTER OF CONTRACT (AND ERISA LAW) AND PASS OUTSIDE OF THE ESTATE. SO UNLESS THE ESTATE HAS ASSETS, THERE WILL BE NOTHING FOR THEM TO RECEIVE. QUITE FRANKLY THE EX WIFE SHOULD SUE THE LAWYER WHO REPRESENTED HER IN THE DIVORCE FOR MALPRACTICE AND SHOULD REPORT HIM TO THE OFFICE OF ATTORNEY REGULATION IN COLORADO - http://coloradosupremecourt.com/Complaints/File_Complaint.asp FOR FAILING TO PREPARE AND FILE THE APPROPRIATE QDROS, HAVE THEM SIGNED BY THE COURT THAT GRANTED THE DIVORCE AND SEND CERTIFIED COPIES TO THE APPLICABLE PLAN ADMINISTRATORS. CLEAR MALPRACTICE IN MY OPINION. HERE IS AN ARTICLE FROM A LEADING QDRO EXPERT IN NEVADA, BUT HIS WORDS APPLY TO ALMOST EVERY STATE. THERE MAY BE A STATURE OF LIMITATIONS ON HER ABILITY TO SUE THE LAWYER AN I WOULD NOT BE SURPRISED IF HE WAS RUNNING OUT THE CLOCK WITH ALL OF HIS FILINGS SO THAT WHEN HE LOSES IT WILL BE TOO LATE FOR HER TO SUE HIM. I HAVE SEEN THIS HAPPEN BEFORE. SORRY TO BE SO CYNICAL. THAT'S WHAT HAPPENS WITH 52 YEARS OF LAW PRACTICE AND 31 YEARS OF QDRO PREPARATION. Malpractive - Lawyer Liability in QDRO Cases - Willick.pdfMalpractive - Lawyer Liability in QDRO Cases - Willick.pdf YOU NEED TO FIND A KNOWLEDGEABLE LAWYER IN COLORADO. I REGRET THAT I DON'T KNOW ANYBODY WHO UNDERSTANDS THIS STUFF. DAVID

I fear that your fact pattern is so complex that nobody on this message board, including me, can follow it. You have gone far beyond our level of expertise here, which is limited to QDRO related matters. If you could restate the facts relating only to the dispute, if any, with respect to life insurance, the dispute with regard to any defined contribution plan benefits, the dispute with respect to any defined benefit plan benefits, that would be a good start. Don't use abbreviations. Note that a DRO is a Domestic Relations Order before it is approved by the Plan, at which point it becomes a Qualified Domestic Relations Orders. So even though courts routinely enter QDROs, they are not really. Also note that questions about statutes of limitations are different from state to state. So tell us the state that all of this legislation is pending. Also, the full and exact names of the plans involved (there are 980,000+ pension and retirement plans in the US) and the name of the plan sponsor (the employer). Then maybe we can assist you. DSG

You didn't say so, but I assume that since you used the acronym "QDRO" this is an ERISA qualified plan and that you are not using "QDRO" generically. If I am right, then when the Plan approves the QDRO it will be and the remarriage should not impact that. The fact that you submitted the QDRO post mortem should not be a problem. Under the Pension Protection Act of 2006. See 29 CFR 2530.206(a) and (c)(1) and (2) Example 1. See also Thomas v. Sutherland at http://scholar.google.com/scholar_case?case=5394115590738781251&q=29+CFR+2530.206%28c%29&hl=en&as_sdt=2,9 and 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. And see Eller v. Bolton, 168 Md.App. 96, 895 A.2d 382 (2006) in which the CSA held that it was permissible for the trial court to enter a post-mortem QDRO following the death of the Alternate Payee. And Robinette v. Hunsecker, 212 Md.App. 76, 66 A.3d 1093, 293 Ed. Law Rep. 892, (2013), where the Court of Special Appeals used a theory of constructive trust to restore to the intended beneficiary survivor annuity benefits that were paid to the beneficiary named by the deceased employee in a Maryland State retirement plan. The court also entered a posthumous “QDRO” which directed the payment of future survivor benefits to the former spouse. Note that the Plan in this case was under the Maryland State Retirement and Pension System and not subject to ERISA. See also Griffin v. Griffin, 62 Va. App. 736, 753 S.E.2d 574 (2014) - https://scholar.google.com/scholar_case?case=5601932368354380870&q=griffin+v.+griffin&hl=en&as_sdt=4,47. Another case worth reviewing is Rivera v. Lew, District of Columbia Court of Appeals, On Certification from the United States Court of Appeals for the District of Columbia Circuit, Case No. 14-SP-117, 99 A.3d 269 (2014). And Garcia-Tatupu v. NFL Player Retirement Plan, Civil Action No. 16-11131-DPW, United States District Court, D. Massachusetts (2017) that you can find at: https://scholar.google.com/scholar_case?case=13784574282734726035&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt. And see Files v. ExxonMobil Pension Plan, 428 F. 3d 478 (Court of Appeals, 3rd Circuit 2005) So you have two theories, one under the PPA and one under a theory of a nunc pro tunc Order. But in addition to all of the foregoing, if the parties remarried, depending on what action the husband may have taken, like naming the wife (again) as his survivor annuity beneficiary, or perhaps he did not delete her in the first place or failed to notify the employer of the divorce. In all even ERISA will hold that by reason of her status as his wife is entitled to the survivor annuity benefit. Good luck.

In many states a QDRO is an enforcement tool, like a garnishment or attachment. In Maryland see the case of Rohrbeck v. Rohrbeck, https://scholar.google.com/scholar_case?case=6821439692749566017&q=rohrbeck&hl=en&lr=lang_en&as_sdt=4,21&as_vis=1 So in Maryland there is no need for the Participant to sign the QDRO. I cannot find any Delaware law on the subject, but even if Delaware law requires the QDRO to be signed by both parties, the Court has to power to hold the reluctant party in contempt and incarcerate him or to fine him $X a day until he signs the QDRO. I have have seen cases where the court can appoint a trustee to sign for an on behalf of the reluctant party. David

If the husband's estate will be asking the Plan to make retroactive payments to an Alternate Payee's estate that have already been paid out to the Participant, I don't think that can happen. See Patterson v. Chrysler Group, LLC, 2016 U.S. Dist. LEXIS 18862 (E.D. Mich. Feb. 17, 2016), holding that a Nunc pro tunc QDRO entered by a State court trumps ruling of Plan Administrator that the “QDRO” submitted did not satisfy ERISA requirements so as to make it acceptable as a valid QDRO that the Plan was required to implement during the lifetime of the Participant. The Participant had retired, elected a single life annuity, received his retirement benefits during his lifetime, and died before any QDRO was approved by the Plan Administrator. Three DROs were submitted to the Plan Administrator, the last one “nunc pro tunc”, seven years after his death. All were rejected as being not “qualified” under ERISA. Nothing was ever paid to the Alternate Payee. The District Court decided that even though the Participant received everything he was entitled to under his “single life annuity” election and there was nothing left for the Alternate Payee, nevertheless the third nunc pro tunc (to the date of retirement) QDRO, entered post mortem, was valid and that the Plan owed the Alternate Payee her marital share of the deceased Participant’s already paid out benefits. This is not a Pension Protection Act of 2006 situation that would permit a post mortem QDRO. Given the many cases dealing with Federal preemption, I don’t see how this ruling can survive an appeal. Some of the cases were cited by the Court as follows: “In other words, the dispositive issue is whether a state court's designation of a DRO as a nunc pro tunc order must be given effect when evaluating whether the DRO meets ERISA's qualification requirements. Neither the Sixth Circuit nor the Supreme Court has resolved this issue. Persuasive authority on the issue is split. Compare Payne v. GM/UAW Pension Plan, No. CIV.A. 95-CV-73554DT, 1996 WL 943424, at *8 (E.D. Mich. May 7, 1996) (unpublished) (holding nunc pro tunc DRO qualified); Patton v. Denver Post Corp., 326 F.3d 1148, 1152 (10th Cir. 2003) (finding Payne persuasive on validity of state court use of the nunc pro tunc doctrine to render DRO compliant with ERISA's qualification requirements); Yale-New Haven Hosp. v. Nicholls, 788 F.3d 79, 86 (2d Cir. 2015) (holding nunc pro tunc DROs qualified because, under the nunc pro tunc fiction, they assigned benefits to plaintiff before those benefits vested in someone else), with Samaroo v. Samaroo, 193 F.3d 185, 191 (3d Cir. 1999) (declining to follow Payne, stating that the facts in Payne serve as an example of potential abuse of a nunc pro tunc DRO, and holding that a DRO's effect on an ERISA plan was a matter of federal law and thus not affected by the state court designating it nunc pro tunc); Yale-New Haven Hosp., 788 F.3d at 92 (Wesley, J., concurring and dissenting) ("I am aware of no legal authority that permits a state court to issue an order and adopt a legal fiction about the order's existence earlier in time such that the state order so easily thwarts the intricate federal statutory scheme surrounding the antialienation of pension benefits.").” My prediction about the survival of this decision was correct, but for the wrong reasons. On January 11, 2017, the U.S. Court of Appeals for the 6th Circuit, in Case No. 16-1365, reversed the District Court’s decision on statute of limitations grounds. The opinion is worth reading. You can find it at: https://caselaw.findlaw.com/us-6th-circuit/1765406.html Part of the opinion was as follows: “As in other states, Michigan court orders issued nunc pro tunc do not retroactively modify substantive rights declared in older court orders. See Sleboede v. Sleboede, 184 N.W.2d 923, 925 (Mich. 1971). Rather, they merely "make [the court's] records speak the truth—to record that which was actually done, but omitted to be recorded." Id. at 925 n.6. That is, nunc pro tunc orders fix clerical mistakes in old orders. Nunc pro tunc orders do not revise the substance of what has transpired, backdate events, or give rise to new substantive rights, including resetting the statute of limitations. Crangle v. Kelly, 838 F.3d 673, 680 (6th Cir. 2016) (finding that Ohio nunc pro tunc orders "merely correct[] . . . record to accurately reflect the court's actions . . . not . . . reset[] the statute of limitations . . . ."); Glynne v. Wilmed Healthcare, 699 F.3d 380, 383-84 (4th Cir. 2012) (holding that nunc pro tunc orders "correct mistakes or omissions in the record so that the record properly reflects the events that actually took place. [They] may not be used to retroactively record an event that never occurred or have the record reflect a fact that never existed."); W.N.J. v. Yocom, 257 F.3d 1171, 1172 (10th Cir. 2001) (holding nunc pro tunc orders cannot be used to rewrite history); Central Laborers' Pension, Welfare and Annuity Fund v. Griffee, 198 F.3d 642, 644 (7th Cir. 1999) ("[T]he only proper office of a nunc pro tunc order is to correct a mistake in the records; it cannot be used to rewrite history."); Walls v. United States, No. 2:06-CV-12441, 2006 U.S. Dist. Lexis 93850, at *1 (E.D. Mich. Dec. 29, 2006) (same). “Furthermore, accepting the district court's view would create an untenable situation regarding submission of domestic-relations orders to pension plans. Under this view, no matter how long ago a plan denied a domestic-relations order, the denied claimant could circumvent the statute of limitations and revive his cause of action by obtaining and submitting a nunc pro tunc version of the denied order to the pension plan, force the plan to reiterate its denial, and effectively reset the statute of limitations. In such a world, no claim would ever truly be time barred, but merely waiting for a nunc pro tunc order to issue. Such a system defeats the clearly understood policy goals of statutes of limitations. See Order of R.R. Telegraphers v. Ry. Express Agency, Inc., 321 U.S. 342, 348-49, (1944) (noting that statutes of limitation are designed "to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared."); Carey v. Int'l Bhd. of Elec. Workers Local 363 Pension Plan, 201 F.3d 44, 47 (2d Cir. 1999) (stating that statutes of limitation serve to encourage "rapid resolution of disputes"). “Therefore, we reverse and hold that the Nunc pro tunc Order did not give rise to a new cause of action, or reset the statute of limitations.” The fact that the Plan Administrator had already paid out 100% of the Participant’s entitlement by the time the QDRO was presented was not a factor. Or maybe the Court of Appeals was just looking for a way to dodge the issue. Suppose the Participant selected a life annuity and died after 3 years, that is, before the expiration of the Statute of Limitations. The Court would have had to deal with the question of whether or not the nunc pro tunc Order issued by the State Court trumped ERISA. They had a back door out of this question in this case. Let’s see what happens in the next case. Back to the case presented, the Alternate Payee's estate should be able to go directly against the Participant. The obligation to share a pension benefit exists whether or not a QDRO is ever entered. The QDRO is merely an enforcement tool for the court to implement its Judgment of Divorce. But you still have to worry about such defenses such as res judicata (finality) and laches (delay in protecting one's rights). And the deceased Alternate Payee's claim may have abated on his death under State law. Interesting situation.

There are two seemingly contradictory statements here. The first is found in some of the responders that "the divorce" revoked the beneficiary designation of the former spouse. The second is in the original post that the 401(k) Plan documents provide that divorce revokes the spousal beneficiary designation. My first concern is that a beneficiary of a 401(k) plan can be anybody, spouse, former spouse, friend or neighbor. So where is the logic of an automatic revocation of a spouse upon divorce. Perhaps the parties had an Agreement that he would maintain her as the beneficiary. In the normal course of events the 401(k) balance would be divided at the time of divorce by a QDRO. Not so with respect to an agreement to maintain the former spouse as the beneficiary of that QDRO. Here is an article that seems on point and discusses the ERISA preemption of state law. https://tax.thomsonreuters.com/blog/erisa-preempts-state-law-revoking-beneficiary-designation-upon-divorce/ If the Plan followed state law in revoking the former spouse as beneficiary, then that will not fly. See Kari E. Kennedy, Executrix v. Plan Administrator for Dupont Savings and Investment Plan, No 07-636 (Supreme Court 2009). You can find this case at https://scholar.google.com/scholar_case?case=16253581861885772265&q=kari+e.+kennedy&hl=en&lr=lang_en&as_sdt=20000006&as_vis=1 And In Egelhoff v. Egelhoff, 532 US 141 (2001), the United States Supreme Court found that ERISA trumps a statute from the State of Washington that would have invalidated a beneficiary designation upon divorce, and that the named beneficiary would receive the proceeds of a life insurance policy notwithstanding that the decedent and the named beneficiary had been divorced. You can find this case at https://scholar.google.com/scholar_case?case=8556034538245660748&q=egelhoff+v.+egelhoff&hl=en&lr=lang_en&as_sdt=20000006&as_vis=1 On June 3, 2013, the United States Supreme Court issued a decision in Hillman v. Maretta, No. 11–1221 (S.Ct. 2013) dealing with life insurance programs payable pursuant to the Federal Employees Group Life Insurance Act (“FEGLIA”). This was similar to Egelhoff in that the Code of Virginia contained a provision that, where the marital status of the insured party had changed, and he had failed to change his beneficiary designation to someone other than his former spouse prior to his death, the former spouse who receives life insurance proceeds to which she was not entitled would be required to pay them over to the widow (or other person designated by law to receive the proceeds e.g. per the law of intestacy) of the forgetful deceased party. The issue was whether FEGLIA trumped the law of Virginia. Note that there was no “QDRO” or equivalent document since the deceased party was not required to maintain life insurance for the former spouse. You can find this case at https://scholar.google.com/scholar_case?case=9826259326218059818&q=Hillman+v.+Maretta&hl=en&lr=lang_en&as_sdt=20000006&as_vis=1 Another very good case on the subject is Hennig v. DIDYK, Tex: Court of Appeals, 5th Dist., No. 05-13-00656-CV, (2014) that you can find at https://scholar.google.com/scholar_case?case=1419348984792461652&q=Hennig+v.+DIDYK&hl=en&lr=lang_en&as_sdt=20000006&as_vis=1 The basic rule is that the Plan Administrator is required to pay ERISA plan benefits to the named beneficiary and that ERISA preempts any state law mandating another result. So the first point of inquiry is WHY the Plan provided that a beneficiary designation to a former spouse is automatically revoked? I have never seen that in 32 years of preparing QDROs. If the Plan was following state law, ERISA will preempt that requirement and the former spouse will be the named beneficiary of the 401(k). This same rule has applied to IRA accounts. See PaineWebber v. East, 363 Md. 408, 768 A.2d 1029 (2001) - which you can find at - http://scholar.google.com/scholar_case?case=14624602948014812254&q=paine+webber&hl=en&as_sdt=4,21. In that case the husband failed to remove his ex-wife's name as beneficiary of his IRA account [IRAs are not subject by ERISA] valued at about $600,000.00 which, per the agreement of the parties, he was to retain as his property. The husband remarried and then died without having changed the beneficiary. The former spouse filed suit to recover the IRA balance arguing that she was the named beneficiary - which was true. The Court of Appeals held that the former spouse would receive the money despite language in the separation agreement that provided: "Each of the parties hereby expressly waives any legal right either may have under any Federal or State law as a spouse to participate as a payee or beneficiary regarding any interests the other may have in any pension plan, profit-sharing plan, or any other form of retirement or deferred income plan including, but not limited to, the right either spouse may have to receive any benefit, in the form of a lump-sum death benefit, joint or survivor annuity, or pre-retirement survivor annuity pursuant to any State or Federal law, and each of the parties hereby expressly consents to any election made by the other, now or at any time hereafter, with respect to the recipient and the form of payment of any benefit upon retirement or death under any such pension plan, profit-sharing plan, or other form of retirement or deferred income plan." There are many more cases dealing with this same issue.