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It is my experience that Plan Administrators are loathe to become involved in litigation if they act or fail to act in the best interests of both the Participant and the prospective Alternate Payee. The owe a fiduciary duty to both. Attached are a number of Memoranda I have prepared over the years that touch on that relationship and its real world implications. Also attached is a form of Notice of Adverse Interest and cover letter I have used many times when there was any possibility that the Participant might take action that would deprive the Alternate Payee of a share of the Participant's D/B or D/C benefits. Once the Plan has "actual notice", I have never had a Plan Administrator refuse to put a hold on distributions pending an agreement of the parties or an order of the Court. Holding up a Participants retirement money is a powerful incentive to resolve the issues. You might be surprised at how often a Participant will fill out an online form that does not require an attestation by a Notary Public and check the box "unmarried". Is it fraud? Yes. But it's also rampant and victimizes the Plan and the prospective Alternate Payee. "Better safe than sorry" applies. I have come to the point where I suggest to all (mostly) Maryland attorneys within the reach of my online voice to send this sort of Notice and letter immediately when a prospective Alternate Payee walks through the door. It might be malpractice and a violation of the Rules of Professional Conduct not to do so. A delay in having a QDRO entered by the Court and sent to and approved by the Plan can have disastrous consequences. See my attached Memo on that issue. Having addressed the issue from a macro perspective, I note that ERISAlaw addresses not only distributions but "loans" from a defined contribution plan. If that's the case, a few things are noteworthy. First, a loan from one's D/C plan is not a "loan" in any sense of that word. The Participant is borrowing from himself, paying the "loan" back to himself, and paying interest to himself. The only real penalty is that the amount of the loan is not a part of his account and will not benefit from interest, dividend, gains, losses or investment experience until it is repaid. It is more like taking $20 from the cookie jar in the kitchen and putting $21 back a week later. Plus, the loan is limited to 50% of the vested account balance but not to exceed $50,000. Furthermore the QDRO will either "include" (disregard) or "exclude" (net out ) the loan in determining the amount or percentage of the account payable to the Alternate Payee. If the Alternate Payee is entitled to 50%, the most the Alternate Payee has as risk is $25,000 if the loan is "excluded". The same problem arises if the Participant tries to take a hardship withdrawal, an in-service withdrawal, or a post-termination withdrawal. Except for TSP accounts, the law does not require notice to or consent by a spouse to any of these actions. Once the money has been withdrawn it is unlikely that an Alternate Payee will ever recover their share. The Participant will roll it into successive IRA accounts in remote locations, or cash it out, pay the taxes and hide it in his brother's business checking account in Vancouver. Contempt matters not if the Participant never returns to the home state where the court is located. David Benefits Link Memo.pdf Notice of Adverse Claim-Interest December 5, 2024.pdf Cover Ltr. Notice of Adverse Interest-Claim Dec 5, 2024.pdf CONSEQUENCES OF DELAY 02-14-2025.pdf

Response to Susan L. The folks at OPM are not the brightest bulbs on the marquee in good times. I have no idea what they will be doing now. I am concerned with delays. See my attached Memo. . CONSEQUENCES OF DELAY 02-14-2025.pdf

If the representative at Edward Jones is using the word "QDRO" they don't know what they are talking about. Talk to someone higher up in the company who understand that the acronym "QDRO" stands for QUALIFIED Domestic Relations Order" and that "QUALIFIED" meana qualified under ERISA and that IRAs are not governed by ERISA. The problem is that you may not be able to get a post-mortem "Retirement Benefits Order" and may have to rely on the language of the IRA plan documents.

See my comments in bold type. So I just retired - 7 months ago - I have a QDRO [It's not called a QDRO. It's a Court Order Acceptable for Processing or "COAP". Did the COAP contain the address of your former spouse?] from my 1st marriage - to ensure my retirement didn't get held up I sent a copy of my Divorce decree and QDRO to OPM - [Did you send OPM a certified copy (not a "teste" or "true test" copy) of the divorce decree and a certified copy of the COAP and a copy of the Marital Settlement Agreement if there was one? And did you include a cover letter with the full names, dates of birth and Social Security numbers for you and your former spouse? Did your cover letter state "This COAP is currently in full force and effect and has not been amended, vacated, set aside, superseded, or otherwise declared invalid by the Court?" Did you send all of the above via USPS Certified Mail (with tracking) to Office of Personnel Management Retirement and Insurance Group, P.O. Box 17, Washington DC 20044-0017? Did you receive notification from the Post Office that the package was delivered? Did you receive a determination letter from OPM saying confirming that they received the COAP, that it was approved (or rejected and telling you why), and telling you how they interpret and plan to implement the COAP? Did the COAP provide for survivor annuity benefits be be paid to your former spouse; and if so, is the cost of that survivor annuity being deducted from your you share, your former spouse's share, or partly from each party's share of your retirement annuity?] I just got my OPM booklet explaining my benefits and all that jazz about my annuity payment [If you retired seven months ago why was there such a delay in the commencement of your benefits? Who prepared the QDRO for you? Did you know that an Order labeled as a QDRO is not acceptable to OPM and will be rejected. Scroll down to "Exemption from ERISA" at https://www.opm.gov/healthcare-insurance/healthcare/reference-materials/attorney-handbook/ ] but what I didn't see is the explanation part about the payment portion to my ex. Since I've sent everything to OPM and they have it, I feel like I've done everything I need to do and if my ex wants to find out why he isn't getting anything it's up to him to contact OPM and ask. Any pointers? [Once OPM approves the COAP you will likely be required to pay your former spouse the share of the retirement annuity not paid, and OPM will allocate the cost of the survivor annuity as directed in the COAP. I suspect you either didn't have an attorney handling this matter or that the attorney didn't know what he/she was doing.]

Let me expand by inquiry my directing you to an article about Secure 2.0 and QLACs and QDRO's. https://www.businessofbenefits.com/2023/01/articles/secure-2-0/secure-2-0s-new-qdro-rules-the-mainstreaming-of-the-qlac/ Section 202(a)(2) and (b) of Secure 2.0 provides: "(2) FACILITATE JOINT AND SURVIVOR BENEFITS.—The Secretary shall amend Q&A–17(c) of Treasury Regulation section 1.401(a)(9)–6, [I cannot confirm that these amendments have been made unless they did away with the Q&A format and addressed it at paragraph "(q)" at https://www.ecfr.gov/current/title-26/chapter-I/subchapter-A/part-1/subject-group-ECFR6f8c3724b50e44d/section-1.401(a)(9)-6#p-1.401(a)(9)-6(q)] and make such corresponding changes to the regulations and related forms as are necessary, to provide that, in the case of a qualifying longevity annuity contract which was purchased with joint and survivor annuity benefits for the individual and the individual's spouse which were permissible under the regulations at the time the contract was originally purchased, a divorce occurring after the original purchase and before the annuity payments commence under the contract will not affect the permissibility of the joint and survivor annuity benefits or other benefits under the contract, or require any adjustment to the amount or duration of benefits payable under the contract, provided that any qualified domestic relations order (within the meaning of section 414(p) of the Internal Revenue Code of 1986) or, in the case of an arrangement not subject to section 414(p) of such Code or section 206(d) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1056(d)), any divorce or separation instrument (as defined in subsection (b))— (A) provides that the former spouse is entitled to the survivor benefits under the contract; (B) does not modify the treatment of the former spouse as the beneficiary under the contract who is entitled to the survivor benefits; or (C) does not modify the treatment of the former spouse as the measuring life for the survivor benefits under the contract. (b) Divorce Or Separation Instrument.—For purposes of subsection (a)(2), the term “divorce or separation instrument” means— (1) a decree of divorce or separate maintenance or a written instrument incident to such a decree, (2) a written separation agreement, or (3) a decree (not described in paragraph (1)) requiring a spouse to make payments for the support or maintenance of the other spouse." These sections presuppose that the parties will agree to the purchase of a QLAC in their "divorce or separation instrument". But what if that is not the case? Can the participant purchase a QLAC during the marriage without notice to or consent by the spouse? When can the participant purchase the QLAC? (i) prior to retirement during the marriage; (ii) at retirement and during the marriage; (iii) not during the marriage without the consent of the spouse; (iv)only in connection with a proceeding for and incident to a divorce? If the participant has purchased a QLAC prior to the time the matter reaches the divorce court (assuming that spousal consent was not required and the spouse in fact did not consented), will a QDRO awarding the spouse a lump sum distribution of a DC plan supersede the participant's purchase of the QLAC? Are Alternate Payees of D/C plans now treated the same as a spouse of a Participant in a D/B plan pursuant to 26 CFR § 1.401(a)-20? It's now 2026. A new client walks into my office and says that her husband works for Lockheed Martin and participates in the Lockheed Martin Capital Accumulation Plan, a defined contribution plan. He is planning to retire next month before the divorce hearing, and she believes that he is going to elect a QLAC with a "life only" option. I don't know of any provision of law that requires notice to her or her consent. [Does IRS Manual Sections 4.72.9.3.5 (Spousal Consent Rules) and 4.72.9.3.5.1 (Exceptions to Spousal Consent Rules) apply?] Based on her age and his age and their relative ages and their life expectancies, she thinks it would be better to have a lump sum distribution of 50% of the vested balance in his CAP and roll it into her IRA. My client is very knowledgeable and understands that pursuant to 29 U.S.C. § 1055(d) a single life annuity and a QJSA are actuarially equivalent to each other (and that the same is true of a QPSA pursuant to 1055(e)). What do I tell her? In my world of divorce and QDRO this threatens to become a BFD. Thanks. David

What Government. If it's the Federal Government it would be a Thrift Savings Plan that is similar to but not a 401(k). TSP was created pursuant to 5 U.S. Code § 8437 and 5 U.S. Code § 8351 and subject to 5 CFR Part 1601. So it must one of thousands of State, County, or Municipal 401(k) plans. It seems unlikely that a 401(k) plan that can be distributed in a lump sum is not able to be rolled over to an IRA or other eligible retirement account. I would bet that it could be rolled over to a former spouse pursuant to a QDRO. So the answer must be found in the underlying plan documents. But who knows what Secure 2.0 has wrought. I see nothing a thttps://www.irs.gov/retirement-plans/plan-participant-employee/rollovers-of-retirement-plan-and-ira-distributions that suggests that a rollover is not possible. Take a look at the "Rollover Chart". And see https://www.irs.gov/taxtopics/tc413 If you have some documentation from the plan in question that limits the ability to implement a rollover (unless it's because the balance is under $7,000) post it here. What is your relationship to this matter. Are you the participant or the Participant's lawyer or financial advisor or accountant? David

I enjoy reading posts on this terrific blog,, however, I find that I cannot get answers to questions that are of vital concern to me and many of my lawyer colleagues, and that are destined to result in issues for Plan Administrators as well. The topic - the allocation of pension and retirement plans between divorcing couples via a QDRO or similar Court Order. In 2022 there were 673,989 divorces in the United States. There are about 163,000 ERISA qualified pension and retirement plans in the US plus another 12,000 plans governed by other sections of Federal law (FERS, CSRS, Military, to name a few), plus State, County, Municipal plans that operate pursuant to local laws and regulations, and International plans. I have been trying since Secure 1.0 to determine how Secure 1.0 and now 2.0 will interface with defined contribution plans where historically the Alternate Payee's share has paid in the form of an immediate lump sum either: (i) tax free to the Alternate Payee's IRA or other qualified retirement plan, or, (ii) in the form of a taxable distribution directly to the Alternate Payee, but no 10% early withdrawal penalty. The main question is whether or not the election by a Participant in a defined contribution plan of an annuitized payout pursuant to Secure 2.0 during the marriage can be superseded by a subsequent QDRO entered by a Court pursuant to State law directing a lump sum payout, and how will that payment be computed and paid? It is not clear to me whether or not a Participant can make such an election prior to retirement. And if it is possible for the Participant to purchase an annuity during prior to retirement and during the marriage without notice to or consent by the spouse. Timing of events is critical to the rights and responsibilities of the parties. Federal preemption is an every present sword of Damocles. Plan documents and options vary and usually rule. I participate in quite a few other QDRO oriented blogs and nobody seems to have any answers. Am I the only one that is worried about this? Or is it just the OCD required to afflict all members of the Bar. Since pension and retirement benefits represent one of the two highest value assets owned by the parties (the equity in their home being the other), that is an important matter. In my world the tide is rapidly receding exposing the ocean floor, reefs and fish, and the birds and animals are heading for high ground. Watch the 2012 movie "The Impossible". Spoiler alert - DO NOT watch the trailer. It is a great movie. David Goldberg

I enjoy reading posts on this terrific blog,, however, I find that I cannot get answers to questions that are of vital concern to me and many of my lawyer colleagues, and that are destined to result in issues for Plan Administrators as well. The topic - the allocation of pension and retirement plans between divorcing couples via a QDRO or similar Court Order. In 2022 there were 673,989 divorces in the United States. There are about 163,000 ERISA qualified pension and retirement plans in the US plus another 12,000 plans governed by other sections of Federal law (FERS, CSRS, Military, to name a few), plus State, County, Municipal plans that operate pursuant to local laws and regulations, and International plans. I have been trying since Secure 1.0 to determine how Secure 1.0 and now 2.0 will interface with defined contribution plans where historically the Alternate Payee's share has paid in the form of an immediate lump sum either: (i) tax free to the Alternate Payee's IRA or other qualified retirement plan, or, (ii) in the form of a taxable distribution directly to the Alternate Payee, but no 10% early withdrawal penalty. The main question is whether or not the election by a Participant in a defined contribution plan of an annuitized payout pursuant to Secure 2.0 during the marriage can be superseded by a subsequent QDRO entered by a Court pursuant to State law directing a lump sum payout, and how will that payment be computed and paid? It is not clear to me whether or not a Participant can make such an election prior to retirement. And if it is possible for the Participant to purchase an annuity during prior to retirement and during the marriage without notice to or consent by the spouse. Timing of events is critical to the rights and responsibilities of the parties. Federal preemption is an every present sword of Damocles. Plan documents and options vary and usually rule. I participate in quite a few other QDRO oriented blogs and nobody seems to have any answers. Am I the only one that is worried about this? Or is it just the OCD required to afflict all members of the Bar. Since pension and retirement benefits represent one of the two highest value assets owned by the parties (the equity in their home being the other), that is an important matter. In my world the tide is rapidly receding exposing the ocean floor, reefs and fish, and the birds and animals are heading for high ground. Watch the 2012 movie "The Impossible". Spoiler alert - DO NOT watch the trailer. It is a great movie. David Goldberg

Right on Peter. How about 72(t)(2)(A)(iii)?

QDROphile is correct that IRA plans are not "qualified" under ERISA and the transfer documents are not called "QDROs". In fact, since the prior to 2013 a court order is not even required. See the attached article by Lawrence Gorin. Most IRS custodians (not Plan Administrators) no longer require a Court Order and use their own forms. Examples are attached. There may be some duplication. I am pretty sure that every IRA has provisions that address the possibility that the intended recipient may predecease the owner of IRA account and that no contingent beneficiary(ies) is/are named. The provision would be called an "Order of Precedence" and might look something like this: "The form applies only to the disposition of your IRA account after your death. It is only necessary to designate a beneficiary if you want payment to be made in a way other than the following order of precedence: To your widow or widower. If none, to your child or children equally, and descendants of deceased children by representation. If none, to your parents equally or to the surviving parent. If none, to the appointed executor or administrator of your estate. If none, to your next of kin who is entitled to your estate under the laws of the state in which you resided at the time of your death. In this order of precedence, a child includes a natural child and an adopted child, but does not include a stepchild whom you have not adopted; parent does not include a stepparent, unless your stepparent has adopted you. By representation means that if one of your children dies before you do, that child's share will be divided equally among his or her children." Or your state may have a similar provision in the Estates and Trust volume of the State Code. Whether or not the state law will supersede the IRA Order of Precedence is something I cannot predict. You are asking is a posthumous Order can be entered following the death the IRA owner. Doubtful. The Pension Protection Act of 2006 provides that a posthumous QDRO in an ERISA qualified plan will be valid. See 29 CFR 2530.206(c)(1) - https://www.ecfr.gov/current/title-29/subtitle-B/chapter-XXV/subchapter-D/part-2530/subpart-C/section-2530.206#p-2530.206(a) I can't tell you if that applies to an IRA. What is the name of the IRA? Content them and ask for their Plan Documents and whether or not they have an Order of Precedence Her is a list of 10 cases in which "order of precedence" is used in connection with a divorce case. I don't know if they will help you. https://scholar.google.com/scholar?hl=en&as_sdt=4%2C36%2C111%2C126%2C356&q="order+of+precedence"+"divorce"&btnG= If you want to expand your reseach to all case that say "order of precedence" wihtout reference to divorce you will find 35 cases at https://scholar.google.com/scholar?hl=en&as_sdt=4%2C36%2C111%2C126%2C356&q="order+of+precedence"+&btnG= +++IRAs_ Division and transfer in.pdf Alliance Bernstein IRA Transfer Form.pdf American Funds IRA Transfer Form.pdf Equitable Annuity IRA Transfer Form.pdf Equitable IRA Transfer Form.pdf Fidelity IRA Form.pdf Fidelity IRA.pdf Fideltiy IRA and HSA.docx Fideltiy IRA and HSA.pdf Invesco IRA Form.pdf IRA_IRRA_RothIRA_SEP_SRA_DivorceTransferForm.pdf Merrill (Lynch-Edge) IRA.pdf Merrill Lynch DivorceTransferForm 2022.pdf Morgan Stanley IRA Transfer Form.pdf MS IRA Transfer Document Blank.pdf Pacific Life.pdf Putman IRA Transfer on Divorce Form.pdf Putnam IRA.pdf RBC IRA.pdf Schwab IRA Divorce Transfer Request Form.pdf Schwab IRA Transfer in Divorce 2022 Ed.pdf Schwab IRA_ESA Divorce Transfer Request Form 2022.pdf T Rowe Price IRA DivorceTransfer Form.pdf T. Rowe Price IRA Divorce.pdf TD Americtrade IRA Transfer - Divorce.pdf TD Ameritrade.pdf TIAA IRA Letter of Instruction.doc USAA IRA form.pdf Vanguard IRA Divorce #2.pdf Wells Fargo IRA Transfer in Divorce Form.pdf

What does you Order of Precedence say.

How about this. Call the participant. Ask him to stop by and give him two pennies before the disappear from circulation. Or tape them to a care and mail them to him.

See my comments in bold type. "I am an Orange County California employee What is your job description? and I plan to retire in 3 years with 25 years of service. I have a defined pension plan where I can retire after a certain number of years of service, at a certain age, with a certain income history and I'm eligible for a lifetime annuity (2.7% of my top 3 earning years times each year of service). I started this job 3 years into marriage (2001) and we divorced 10 years later (2011). My top 3 earning years were long after the divorce. This does not matter. See Foundation Theory Memo attached. I remember being told by my attorney that we needed to hire a QDRO attorney but that was never done. I also remember calling the County retirement and being told the divorce had been reported to them and that I would not be able to collect my pension until the QDRO was complete. Your former spouse should have hired an attorney to prepare a QDRO, have it signed by the Judge, and sent a certified copy to the Plan Administrator. If your former spouse did not do so, and 14 years have elapsed, that there are various outcomes. In some cases the entry of the QDRO will be barred by the statute of limitation or by the doctrine of laches (waited too long). In other cases the court may no longer have jurisdiction to enter a QDRO. Many Plans will accept a QDRO no matter when it is entered, and, as they did in your case, will not allow you to start taking your pension until the matter is resolved by a court either by entering a QDRO or by holding that it's too late. ERISA plans will allow a QDRO to be entered after your death. I have read online that my ex may not be entitled to any portion of my pension if I remarry, or if I remarry before I retire, Not likely. It is common for a former spouse to lose an interest in your survivor annuity if SHE remarries prior to a certain ago. or if I retire before the QDRO is complete. I'll be engaged next month and I do plan on remarrying before I retire. There is law that says that if you remarry and then retire, your new spouse will be entitled to the survivor annuity and your former spouse will lose that right. Can anyone please confirm any of this for me, is it true, and that simple? The problem is that there are about 40,000 defined benefits plans (pensions) governed by a Federal laws known as ERISA, the REA and the PPA. (You don't need to know what these acronyms stand for.) Other Federal plans cover FERS and CSRS pensions. Another Federal law covers Military pensions. Another State Department employees. In addition, States, Counties, Cities, Municipalities and other political subdivisions will have pensions governed by other laws. The outcome is not uniform. So you need to know how the rules of your plan that seems to be https://www.ocers.org/ You didn't say what you job was for Orange County, but in many jurisdictions if you are a law enforcement officer, a firefighter or a correctional officer, you former spouse is not entitled to survivor annuity benefits - only a current spouse. And your marital settlement agreement, if you have one, or if not , the Judgment of Divorce, may not have mentioned survivor annuity benefits at all and there are states that hold that if you don't mention it in you agreement and the court doesn't order it, the former spouse doesn't get it. . Note that I have spent a lot of time talking about survivor annuity benefits since that is where the most problems occur. You former spouse's share of your retirement annuity it divisible by a formula known as the "time rule" - Your gross pension payment/2 multiplied by a fraction (the coverture fraction) where the numerator if the number of months of creditable service performed during the marriage and the denominator is the total number of months of service at the time of your retirement. It looks like you were married while in the Plan for 7 years - 84 months. And you will retire with 25 years =300 months. So if your pension is $6,000/month, the formula would be $6,000/2 - $3000 x 84/300 $840 a month as her share. The Plan Administrator will be able to give you a more accurate estimate. Here is a form of QDRO published by OCERS - https://www.ocers.org/sites/main/files/file-attachments/model_dro_a_-_active_or_deferred_members_-_prior_to_retirement_fillable.pdf?1731944789 If not true or that simple, can someone please explain what I can expect or should do in this situation (never did a QDRO, it's been 14 years since the divorce, and I plan to remarry)? She will not need any portion of my pension as she has done very well for herself these past 14 years Sorry. Doesn't matter. The pension is community property and if she was awarded a portion she will get it. 17 years when I retire, and I will need it all. She has not remarried, if that matters. There are no simple answers. I have been preparing QDRO for 38 years and every plan the is governed by a different law and difference regulations has different rules. I would he happy to read your Agreement and Judgment of Divorce and try to provide some insight,* but you are going to want to find a lawyer in your area using this website - https://www.aaml.org/find-a-lawyer/ to find out what you need to do. AAML lawyers have a high level of expertise. Get every publication that the Plan Administrator has before you see the attorney. There are actually about 175,000 different pension (defined benefit) and retirement (defined contribution like a 401(k)) plans in the US and they work in mysterious ways. *marylandmediator@gmail.com or Fax to 301-947-0501. David Foundation Theory.pdf

If the court awarded you retirement and survivor benefits, but the QDRO was never filed, that may change the outcome. I need to see a copy of the Judgment of Divorce and and written agreement that you and your husband signed. These case are fact intensive David

I practice law in Maryland and DC and specialize in preparing QDROs intended to divide pension and retirement benefits for divorcing spouses. I have prepared such Orders for the District of Columbia Police Officers and Firefighters’ Retirement Plan. See the attached Summary Plan Description for that Plan. Another document dealing with D.C. SPOUSE EQUITY ACT INFORMATION STATEMENT THE DISTRICT OF COLUMBIA POLICE OFFICERS AND FIREFIGHTERS’ RETIREMENT PLAN is also attached. Normally if an employee retires while still married, the spouse at that time will be entitled to receive survivor annuity benefits at the time of his death. But that doesn't look like your situation. If you were divorced in 2016 and the Court did not enter a "Qualifying Court Order" in connection with the divorce awarding you retirement and survivor benefits, then you did not receive a share of his retirement benefits from and after 2020 when he retired, and you will not receive a survivor annuity now that he has died in 2023. If you had a lawyer representing you in the divorce case you need to take a hard look to see if he/she committed malpractice. Where was the divorce case filed? In DC or in Maryland and if so, in what County. If you want me to review the correspondence you received from the DC Retirement Board I will be happy to do so. My email is marylandmediator@gmail.com and my office number if 301-947-0500. David DC Police and Firefighters SPD 2023.pdf DC Spouse Equity Act Information Statement-POLFF.pdf

See also https://www.planadviser.com/reminder-avoid-fraudulent-hardship-withdrawals/ https://www.irs.gov/retirement-plans/its-up-to-plan-sponsors-to-track-loans-hardship-distributions

https://www.irs.gov/retirement-plans/plan-participant-employee/retirement-topics-hardship-distributions https://www.irs.gov/retirement-plans/retirement-plans-faqs-regarding-hardship-distributions

Following up on Peter Gulia's, the law is that spousal consent Is always required when changing a beneficiary in all types of qualified retirement plans, even if there are no QJSAs or QPSAs. A spouse must give consent if a married participant is changing the designated beneficiary to someone other than the spouse. The spouse is the default beneficiary for married participants. For example, if a married participant wants to designate their child from an earlier marriage as either the primary beneficiary or a co-beneficiary, they will need to get their spouse to consent to this change. But, as Peter pointed out, the foregoing does not line up with your factual premise. First of all who are you? Attorney for the Plan? Attorney for the named beneficiary? Attorney for the estate of the decedent? What is/are the exact question(s) you are trying to resolve? Is this an ERISA qualified plan? Or a state, county or municipal plan? Or a plan operating under other Federal laws, e.g. CSRS, FERS, FSPS, Military, etc? Or is it a union or church plan?* Are you talking about an employer sponsored defined contribution plan or an employer sponsored life insurance plan? What law or regulation leads you to believe that the original beneficiary designation was voided when the Participant married? What provisions in the Plan documents leads you to believe that the original beneficiary designation was voided when the Participant married? What law or regulation leads you to believe that the Participant's spouse automatically became the beneficiary of the plan benefit? Keeping in mind that this is not a defined benefit plan where pursuant to ERISA the law automatically vests in the spouse a right to a QPSA and a QJSA? Confirm that the named original beneficiary occupied that status at the death of the participant, that is, had not been removed? Was a QDRO issued in connection with the divorce that gave the new spouse a share of the plan benefits? Would that QDRO supercede the prior beneficiary designation? Pursuant to what law or regulations? How does Federal preemption fit into the issues you have raised. In Kennedy v. Plan Administrator for DuPont Savings & Investment Plan, 555 U.S. 285, 299-304 (2009), the Supreme Court held that retirement plans may rely on the plan terms and beneficiary designation forms in determining the proper recipient of survivor benefits. Why wouldn't that apply in this case? Read PaineWebber v. East, 363 Md. 408, 768 A.2d 1029 (2001). Did the Plan documents in you case have provisions that set for the order of precedence in the event of a situation that you described. For example, if you are dealing with a Federal Thrift Saving Plan account the law and the regs provide: “A will, prenuptial agreement, separation agreement, property settlement agreement, or court order will not override either a beneficiary designation or the order of precedence." That order of precedence is: To your widow or widower. If none, to your child or children equally, and descendants of deceased children by representation. If none, to your parents equally or to the surviving parent. If none, to the appointed executor or administrator of your estate. If none, to your next of kin who is entitled to your estate under the laws of the state in which you resided at the time of your death. But assuming that the proceeds of whatever benefit you are dealing with passes to the named beneficiary, who stands next in line is that beneficiary designation is deemed to have been revoked? Does the named beneficiary get the money in hand and then be subject to a post distribution suit? See, Andochick v. Byrd, 709 F.3d 296 (2013), In re: Marriage of Stine, No. A154972, Court of Appeals of California, First District, Division One, - Filed November 22, 2019 - that you can find at - https://scholar.google.com/scholar_case?case=17865274454005199096&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:14880692104701005079:AAGBfm2qi1_JaXLJvydb4f3quYTnTlLkbA Hennig v. DIDYK, Tex: Court of Appeals, 5th Dist., 438 S.W.3d 177 (2014). All of these cases, and many more, were the response to the language in Kennedy, footnote 10, that: ""Nor do we express any view as to whether the Estate could have brought an action in state or federal court against Liv to obtain the benefits after they were distributed. Compare Boggs v. Boggs, 520 U.S. 833, 853, 117 S.Ct. 1754, 138 L.Ed.2d 45 (1997) ("If state law is not preempted, the diversion of retirement benefits will occur regardless of whether the interest in the pension plan is enforced against the plan or the recipient of the pension benefit"), with Sweebe v. Sweebe, 474 Mich. 151, 156-159, 712 N.W.2d 708, 712-713 (2006) (distinguishing Boggs and holding that "while a plan administrator must pay benefits to the named beneficiary as required by ERISA," after the benefits are distributed "the consensual terms of a prior contractual agreement may prevent the named beneficiary from retaining those proceeds"); Pardee v. Pardee, 2005 OK CIV APP. 27, ¶¶ 20, 27, 112 P.3d 308, 313-314, 315-316 (2004) (distinguishing Boggs and holding that ERISA did not preempt enforcement of allocation of ERISA benefits in state-court divorce decree as "the pension plan funds were no longer entitled to ERISA protection once the plan funds were distributed")." (Emphasis supplied.) Your search query will include "post-distribution" DSG *See attach a pretty comprehensive list of the types of plans, qualified and non-qualified that exist in the USA. List of Defined Contribution & Benefit Plans- Qualified or Not - 04-14-2023.pdf

I assume that you are the wife and not the ex-wife. Please confirm that you are the present wife or if you are divorced. Was he retired at the time of his death, or was he still working with the employer. Was this a 401(k) plan with a statement sent to your husband every month showing how much is in the account? If so do you have a statement showing the amount in the account? Or was it a pension plan where you husband retires at a certain age, 65 for example, and is entitled to a lifetime annuity? If you want to get back to me with the exact name of the plan I might be able to tell you what kind of a plan it is. What is the name on the form that you have in hand naming you as the beneficiary? Do you have any knowledge that he actually submitted it to the Plan Administrator. Is this a private company, or a Federal agency, or a State, County or Municipal plan? In what state do you live? Has the Plan Administrator respond to you in writing? What did they say - exactly? You have not provided enough information for anybody to help you? DSG

My comments in all bold type. Participant's divorce decree from a decade ago granted his ex-spouse 50% of the pension benefit Was it an ERISA qualified plan? How about providing the name of the plan identified in the divorce decree. accrued during the term of the marriage. No QDRO was ever filed and the participant passed away a few months ago. Did the divorce decree award survivor benefits? Did the Participant retire during the marriage and name his then spouse as the survivor annui ty of a QPSA and 50% QJSA as required by law? The ex-spouse has retained an attorney to draft and file a posthumous QDRO. Pursuant to the PPA of 2006 I assume? The draft DRO itself is well-written, but the original divorce decree submitted with the draft DRO is a problem. It lists an incorrect plan name and awards the ex-spouse benefits from that plan. 26 USC 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. If the divorce decree does not name the correct name of the Plan you cannot submit a valid QDRO for the correct plan. There is nothing to indicate the parties ever intended for the ex-spouse to share in the benefits from this plan. By "this plan" I assume you mean the incorrectly named plan? If the incorrect plan is named in the divorce decree, wouldn't that be binding. In my state if the judge says apples, but mean oranges, it's going to be apples unless addressed and corrected in a timely manner by a motion to alter or amend or a motion to revise or an appeal. In some cases, a court will grant nunc pro tunc (retroactive) orders to correct clerical errors, etc. However, there are cases stating a retroactive order cannot be used to create new substantive rights that didn't previously exist. Correct. In this case its not clear whether the local family law court would modify the original decree, Res judicata? Statute of limitations. Laches? or whether the plan could accept that modified order. (The participant had remarried and there is a viable argument that 100% of the survivorship rights vested in the new spouse at the time of the participant's death.) In many states the divorce decree will reserve jurisdiction to enter or correct a QDRO, but you cannot use that language to modify the underlying source of the obligation. In other words, you cannot use the power of the court to enter or revise a QDRO to modify the language of the document creating the right to the QDRO, i.e, the MSA incorporated into the divorce decree or, if there was no MSA, then the divorce decree itself. As for remarriage and the rights of a new spouse, read: Hopkins v. AT&T Global Information Solutions, 105 F.3d 153 (1997) Rivers v. Central and South West Corporation, 186 F.3d 681 (United States Court of Appeals, 5th Cir. 1999) at- http://scholar.google.com/scholar_case?case=2296953953561556363&q=rivers+central+and+south+west&hl=en&as_sdt=2,9 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=3487596170773082469&q=dahl+v.+aerospace&hl=en&lr=lang_en&as_sdt=20000003&as_vis=1 See also Vanderkam v. PBGC, 943 F. Supp.2d, 130 (2013) setting forth a thorough discussion of this issue. And the 2015 case of Dahl v. Aerospace Employees' Retirement Plan, No. 1:15cv611 (JCC/IDD), United States District Court, E.D. Virginia, Alexandria Division. https://scholar.google.com/scholar_case?case=3487596170773082469&q=dahl+v.+aerospace&hl=en&lr=lang_en&as_sdt=20000003&as_vis=1 Any thoughts or ideas are appreciated. The posthumous QDRO rules from the DOL are not instructive and the cases are all over the board, even after PPA. Attached find a recent rough memo re: Post Mortem and nunc pro tunc QDROs. You also need to address the role of the Plan Administrator in looking behind the language of the QDRO submitted to them. Her is a letter that I sent to a Plan Administrator: I want to bring the following matters to your attention. 1. The QDRO I prepared was approved by both parties. 2. The QDRO was signed by the Court and a certified copy forwarded to you. 3. By law you act as a fiduciary with respect to both parties. ERISA § 404(a)(1) and ERISA § 409. I would like to bring to your attention a number of relevant authorities that deal with your ability as the Plan Administrator to “look behind” a QDRO that has been submitted to you. A 1992 ERISA Advisory Opinion suggests a plan’s administrator need not review the correctness of a State court’s decision about whether a person is, under a State’s domestic-relations law, the participant’s spouse, former spouse, child, or “other dependent”. See ERISA Adv. Op. 92-17A (Aug. 21, 1992) (A plan’s administrator may treat as a participant’s former spouse for QDRO purposes a person the State court decided was never the participant’s spouse.)- https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/a dvisory-opinions/1992-17a.pdf. Brown v. Continental Airlines, Inc., 647 F.3d 221, 223 (5th Cir. 2011) (“[ERISA § 206(d)(3)(D)(I)] does not authorize an administrator to consider or investigate the subjective intentions or good faith underlying a divorce.”) - https://casetext.com/case/brown-v-continental-airlines-inc. See also Blue v. UAL Corp., 160 F.3d 383, 385 (7th Cir. 1998) (“ERISA does not require, or even permit, a [retirement plan] to look beneath the surface of the order. Compliance with a QDRO is obligatory[.]”) - https://casetext.com/case/blue-v-ual-corporation#p385. And see Matthew v. E.I. Dupont, 3rd Cir. 2017, citing Blue and Brown: “Additionally, DuPont's interpretation subverts the deferenceowed to state-court QDROs by ERISA plan administrators. Our sister circuits have explained that "ERISA does not require, or even permit, a pension fund to look beneath the surface of the order." Brown v. Cont'l Airlines, Inc., 647 F.3d 221,227 (5th Cir. 2011) (citations omitted); see also Blue, 160 F.3d at 385. Here, the terms of the QDRO support Matthews' interpretation.” Attached are a few advisory opinions that may or may not be helpful. Good luck. David POST MORTEM and nunc pro tunc QDROS.pdf DoL Advisory Opinion 1990-46A.pdf Advisory Opinion 1999-13A _ U.S - Sham Divorces.pdf Advisory Opinion 1992-17A - duty of Plan Admin.pdf

Hmmmmm. CPD. Would that be Chicago Police Department California Police Department Columbus Police Department (Ohio) Cincinnati Police Department (Ohio) Chattanooga Police Department (Tennessee) Cambridge Police Department (various locations) Clarkstown Police Department (New York) Corvallis Police Department (Oregon) Clearwater Police Department (Clearwater, Florida, USA) Chandler Police Department (Arizona) Charlotte Police Department (North Carolina) I likely doesn't matter. The award of a retirement annuity normally terminate on the death of the participant or the death of the alternate payee and not on the remarriage of either one. It is common for a former spouse to lose the right to a survivor annuity is he/she marries prior to a certain age (usually 55) - unless the employee retired during the marriage and elected survivor benefits the his/her then spouse. On the other hand many plans provide that police, firefighters and corrections employees cannot be required to elect a survivor annuity for a former spouse --- only for a current spouse. You should be able to find out the answer to your question from whoever administers the CBP pension plan, likely some governmental office. If you are a CPD recipient of benefits you have correspondence from them. Call them. If you know the full and exact name of the plan - Google it. David

You posted: "I have a shared QDRO where the form of payment for the AP is whatever is chosen by the ptp. Doing the math, if I apply the calculation for the marital portion (50% of the marital portion calculated using a coverture fraction) first and then apply the J&S factor for the chosen form of payment to the two pieces I come up with different figures than if I apply the J&S factor to the whole benefit and THEN apply the marital portion calculation. Which method is correct? I assume you are dealing with as ERISA qualified defined benefit plan. I assume you are not dealing with a separate interest allocation. I assume that "J&S" stands for Qualified Joint and Survivor Annuity. I don't know what "QJSA" has to do with the retirement annuity part of the QDRO. I don't know what the coverture fraction has to do with the "QJSA". 1. If you have a shared allocation of the retirement annuity, the formula is - 50% of gross monthly retirement annuity, if, as and when paid to the Participant, multiplied a fraction, the numerator of which it the number of months of creditable service accrued by the Participant during the marriage of the parties, and the denominator of which is the total number of months of creditable service accredited by the Participant at the time of retirement. The only variable is the "50%" and in many states the trial court has the discretion to vary that percentage to achieve an equitable distribution, however the truth is that 50% is almost universal. The goal is the provide the Alternate Payee with 50% of the "marital portion" and to accomplish that goal you apply the coverture fraction. 2. If you are dealing with survivor annuity benefits you have more issues. If, for example, the Participant retired during the marriage, he/she would have been required to elect a QJSA of not less than 50% of the gross retirement annuity, unless waived by the Alternate Payee. See - 26 CFR 1.401(a)-20 See https://www.law.cornell.edu/cfr/text/26/1.401(a)-20 That election will survive a later divorce - and that sounds like what you are referring to in your post. If the Participant retires after the divorce, the QDRO will usually define the amount of the survivor annuity benefit. In some plans it can be 25%, 33%, 50%, 66%, 75% or 100%. 3. I don't think I have ever seen a plan other than under FERS or CSRS where the amount of the survivor benefit is defined with reference to the coverture fraction. For example, under FERS and CSRS it is possible to use what they call a "prorata share" pursuant to 5 CFR 838.922(a) [see https://www.law.cornell.edu/cfr/text/5/838.922 ] as: “(a) ‘Prorata share’ means the fraction of the maximum survivor annuity allowable under § 831.614 or § 842.613 of this chapter whose numerator is the number of months of Federal civilian and military service that the employee performed during the marriage and whose denominator is the total number of months of Federal civilian and military service performed by the employee.” I have never seen this sort of language in an ERISA qualified plan QDRO. Maybe I have never had to address that option in the 38 years that I have been preparing pension and retirement plan Orders. The PBGC model orders provide that an Alternate Payee can be awarded, for example, 40% of the QPSA benefit, and if the plan’s automatic survivor percentage for the QPSA is 50%, then the Alternate Payee will receive 20% of the Participant’s survivor benefit. But I cannot find similar provisions in that related to ERISA qualified plans. See https://www.pbgc.gov/wr/benefits/qdro I suspect the language of the QDRO is causing your confusion. If you want a better answer please provide a copy of the QDRO redacting only the names of the parties and the case number. And tell me what is the Plan's automatic QDSA percentage. Perhaps the answer is to multiply the follow the model of the PBGC model oder and compute the fraction as set forth in 5 CFR. 838.922(a). So if the coverture fraction is 240/300 = 80%, the Alternate receives 80% of the automatic 50% QJSA. David - 301-947-0500

I would like to see the exact language of your plan defining "vesting". In the attached FAQ from the DOL it says: "In a defined contribution plan such as a 401(k) plan, you are always 100 percent vested in your own contributions to a plan, and in any subsequent earnings from your contributions. However, in most defined contribution plans you may have to work several years before you are vested in the employer's matching contributions. (There are exceptions, such as the SIMPLE 401(k) and the safe harbor 401(k), in which you are immediately vested in all required employer contributions. You also vest immediately in the SIMPLE IRA and the SEP.)" I have never seen a Plan Document that did not defined vesting in terms of "service", or that participating in the underlying Plan without more accrued time toward vesting. BTW: Note that "participant" is a noun and "participate" is a verb. So must a participant participate to accrue vested service? The DoL works in mysterious ways. David FAQ from DoL - Vesting.docx

1. I assume that you are using the term "QDRO" because the Plan in you case is an ERISA qualified plan, and that you are not using "QDRO" as a generic name for other sort of plan, e.g. an EDRO, RBCO, COAP, DRO, RBO, IRA, etc. 2. I assume that the purpose of the QDRO is (i) to transfer marital property from one party to the other incident to a divorce; and that it is not being used (ii) to collect child support arrears. The tax consequences respect to "(ii)" will make impact the manner in which the payments can be made inasmuch as the Participant is deemed to be the distributee of money paid for child support (see below) and income taxes must be withheld from the account before the amount is balance of the account is transferred to the Alternate Payee on behalf of the child (sometimes referred to as the Alternate Recipients), and this must be done by grossing up the amount to be transferred. For example if the court order allocates $100,000 to the former spouse for child support, that must be grossed up to $125,000 to permit the Plan to withhold 20%($25,000) for income taxes. [Note 10% may be the minimum percentage that must be withheld.] If the account only has $100,000 you must withhold 20% = $80,000, so the amount does not enough to pay $100,000. N.B. All Agreements by the parties or Orders of the Court entered after January 1, 2019, will have no tax consequences to either party for the payment/receipt of alimony, so the analysis above re: child support will apply to alimony as well. 3. Some Plans, like Warner Brothers-Discovery provide, "If the Participant’s vested liquid balance is insufficient to fund the Alternate Payee’s award, the Order will be non- qualified." The is common for most Plan where Fidelity is the Third Party Administrator. 4. Other plans provide: " On the date that the Plan Administrator segregates Alternate Payee’s assigned share of the benefits as set forth above, to the extent there are not sufficient assets in Participant’s account(s)/investment funds to satisfy the award of benefits to Alternate Payee, then this order shall be interpreted as an award of One Hundred Percent (100%) of Participant’s Total Vested Account Balance under the Plan as of such segregation date. 5. Another option: Reject the QDRO and let the parties or the judge figure out how the Plan is supposed to withhold taxes on Plan account money that must be distributed in full. 6. Yet one more option: Pay out 100% of the Plan account to the Alternate Payee and issue a 1099-R to the Participant, and don't worry about withholding on the theory that the alternate recipient are not receiving taxable retirement benefits and is not a party to the tax consequences imposed on the Participant and should not have the amount ordered reduced. See IRC 402(e)(1)(A) - "For purposes of subsection (a) and section 72, an alternate payee who is the spouse or former spouse of the participant shall be treated as the distributee of any distribution or payment made to the alternate payee under a qualified domestic relations order (as defined in section 414(p))". The spouse or former spouse is NOT the distributee of payments made to the child c/o a parent. And this is consistent with the law that makes child support not taxable to the recipient parent. The same would be true in the case of a Participant in pay status with respect to a defined benefit plan. 7. You can always file an interpleader and deposit the money into the Registry of the court and let the judge decide. If AJC is a Plan Administrator, you Plan Documents should address this potential issue. DSG

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