QJSA & Divorce

[Guest richt]

Participant is married to H1 at her annuity starting date and begins to receive benefit payments in the form of a QJSA. Participant then divorces H1 and marries H2. Participant then dies. There is no QDRO between H1 and participant.

Is there no survivor annuity payable? Or, do H1 or H2 have a right to the survivor annuity?

Thank you in advance for any response.

[QDROphile]

H1 gets the survivor annuity payments unless the plan expressly provides otherwise. The benefit locks on the annuity starting date.

[AndyH]

QDROphile, would you please elaborate on what you mean by "unless the plan expressly provides otherwise"?

Is there some type of plan provision that might cause an ex-spouse to lose beneficiary status, absent a QDRO, once payments have started?

Can a QDRO even cause that?

[QDROphile]

Only in my wildest imagination would a plan provide for other than the usual result, but possibilities are what keeps us going. It is possible that a plan can't provide for a different result. "Check the plan document" is always correct, even if it is sometimes a refuge for the lazy.

At least one court (Hopkins v. AT&T Global, 4th Circuit) has held that a QDRO cannot interfere with the contingent annuitant's benefit, but the court is wrong. A QDRO can reach anything payable to anyone except an alternate payee under a prior QDRO.

[Guest Keith N]

For what it's worth.... I agree with QDROphile. Short of a QDRO, H1 gets the annuity.

[Guest richt]

do you conclude this because of treas. reg. sec. 1.401(a)-20, Q&A-25(B)(3)?

[Guest Keith N]

WOW! I never knew that was actually in writing, but it does make it pretty clear.