Joint and Survivor Question

[Guest MC2]

If a Participant of a pension plan enters into a QDRO with his ex-spouse and she is receiving 50% of his benefit, pursuant to the QDRO, as of a certain date, is the Participant's new spouse entitled to 50% of the Participant's benefit upon his death?

[Guest MC2]

Answer here:

http://benefitslink.com/boards/index.php?showtopic=34275

The link just took me to a question that I posted in another category.

[Guest mjb]

I dont understand your Q. The question of whether spouse 2 is entitled to survivor benefits after the death of the participant is determined by the QDRO. It is permissible for the ex spouse to receive 50% of the retirement benefit paid to the participant and 0% of the survivor annuity benefit payable under the plan.

[Guest MC2]

I dont understand your Q. The question of whether spouse 2 is entitled to survivor benefits after the death of the participant is determined by the QDRO. It is permissible for the ex spouse to receive 50% of the retirement benefit paid to the participant and 0% of the survivor annuity benefit payable under the plan.

The QDRO provides for the ex to receive 50% of the participant's accrued pension benefit as of June 2005, which the ex has already began to receive. Since that time the participant continued to work and remarried. The participant now wants to retire and is asking whether or not his new spouse will be entitled to the 50% joint and survivor annuity upon his death.

[Guest MC2]

According to the QDRO, the alternate payee is not considered the surviving spouse. Under the terms of the QDRO, the AP receieved a seperate interest of 50% of the participant's accrued benefit as of June 15, 2005. Therefore, the new spouse would be entitled to receive a QJSA/QPSA upon the participant's death, correct? If so, from what date would this benefit be calculated (June 15, 2005?)?

Thanks.

[JanetM]

I would think the second spouse could be entitled to J&S benefit when the employee retires if that is the option he elected at retirement. You have to give the employee all the optional forms at that time. The benefit remaining after QDRO is available to employee & new spouse under QPSA & QJSA,

[Guest mjb]

two Q:

1. Has AP been awarded the surviving spouse benefit under QDRO? This is separate benefit right from amount of participant's retirement benefit. It is not unusual for AP to waive this right.

2. no one can tell you whether the AP is entitiled to the SS benefits without reading the actual QDRO.Why cant the participant go to his attorney and get an answer?

[Guest MC2]

two Q:

1. Has AP been awarded the surviving spouse benefit under QDRO? This is separate benefit right from amount of participant's retirement benefit. It is not unusual for AP to waive this right.

2. no one can tell you whether the AP is entitiled to the SS benefits without reading the actual QDRO.Why cant the participant go to his attorney and get an answer?

two A:

1. No. I read the QDRO and it specifically states that the AP is not to be considered the surviving spouse.

2. Not sure.

Based on the fact that the AP is not the surviving spouse, what is the current spouse entitled to?

Thank you for your insight . . . I really appreciate it.

[Mike Preston]

Seems cut and dried to me. Participant had some of their benefit taken away pursuant to a QDRO. They also have some left! Whatever they have left is bereft of a claim from ex-spouse as to entitlement of J&S. Hence, if new wife satisfies definition of spouse for spousal benefit rules, new wife is to be treated as, uh, spouse. The much more interesting question is what benefit is the participant entitled to if the plan charges for the QPSA. Now, *THAT* is an interesting question.

*IS* that the question?

[Guest MC2]

Seems cut and dried to me. Participant had some of their benefit taken away pursuant to a QDRO. They also have some left! Whatever they have left is bereft of a claim from ex-spouse as to entitlement of J&S. Hence, if new wife satisfies definition of spouse for spousal benefit rules, new wife is to be treated as, uh, spouse. The much more interesting question is what benefit is the participant entitled to if the plan charges for the QPSA. Now, *THAT* is an interesting question.

*IS* that the question?

no, that is not the question since the participant has already retired and began to receive his benefit. it would only be a matter of the new spouse's entitlement to a QJSA.

[JanetM]

Then what the spouse gets depends on the form of benefit the participant elected. If it was the life annuity then the spouse gets zero. If it was J&S then the spouse gets what ever percentage of the benefit was elected.

[Guest MC2]

Then what the spouse gets depends on the form of benefit the participant elected. If it was the life annuity then the spouse gets zero. If it was J&S then the spouse gets what ever percentage of the benefit was elected.

Under the terms of the QDRO, the AP receieved a seperate interest of 50% of the participant's accrued benefit as of June 15, 2005. Would the J&S for the new spouse only be calculated on monies earned after June 15, 2005?

Thanks.

[Guest mjb]

In a DB qdro there are at least 3 separate traunches of benefits that can be awarded to the AP:

1. a separate benefit payable in a lump sum or single life annuity over the life of the AP. This benefit is a portion of the retirement benefit accrued by the employee but it is the separate property of the AP and payment is not dependent on when the ee retirees or dies.

2. a portion of the employee's annuity benefit payable to the AP during the employee's lifetime or in a single sum. This is a shared benefit because the APs interest is shared with the employee, e.g. commencement of benefits, enhancements, etc.

3. 50% surviving spouse annuity benefit, payable for life if AP survives the employee.

The AP can receive one or more of the above benefits in a QDRO in conjunction with SS benefits payable to the spouse of the employee on the date of retirement as long as the total benefit paid to all parties does not exceed 100% of the benefit accrued by the employee and the SS benefit does not exceed 50% of the benefit accrued by employee.

In the case discussed the AP was awarded #1. If the QDRO did not provide for the AP to receive #3 then the employee's spouse on date of retirement will receive #3 since this is required under ERISA. Someone in charge of the plan, e.g. Plan administrator should be able after reviewing the QDRO, to tell you, on advice of counsel, who will receive the SS benefit.