Assignment back of 50% survivor benefit

[MPLSLAW]

Employee retires at age 60 and begins to receive joint and 50% survivor annuity. 5 years later he divorces and former spouse disclaims her interest in the 50% survivor annuity in exchange for a lump sum settlement outside of the plan. The plan has a "pop-up" provision if the spouse dies before the employee. Can the parties do a QDRO to assign the survivor benefit back to the employee and "deem" the former spouse deceased??? any thoughts?

[QDROphile]

Not if the plan does not want to allow it. If the plan wants to allow it, the provisions in the plan or the QDRO Procedures (better the plan) should be carefully drawn. Until there are special provisions to allow it, I doubt that the plan terms support the arrangement, so one wonders if the plan would be paying benefits not in accordance with its terms.

[david rigby]

Somewhat similar: EE retires w/ J&S election, then divorces w/ QDRO, then remarries and seeks to substitute new wife under J&S, then plan terminates.

http://www.pbgc.gov/Documents/lfad/VanderKam-opinion.pdf

[QDROphile]

Shame on the plan's lawyer for many reasons, including being the architect and drafter of the domestic relations order (grade in fiduciary considerations: F)and apparently not giving any consideration to the issues behind blithely substituting the life of one survivor annuitant for another (grade in actuarial considerations: F). Grade in understanding the law in the applicable federal circuit at the time: F. I am a bit more sympathetic on the last point because I thought the Fourth and Fifth Circuits were wrong until the Ninth Circuit declared the winner between QDRO law and QJSA law.