Equal Protection/QDRO question

[qdro007]

Any help on this issue would be greatly appreciated, I am trying to understand this legal subject better.

In state X, state employees pensions forms do not required notification of election to spouse. However, non state workers are required to get signature of spouse. State X in recent years began recognizing QDRO's to override elections of state workers, in order for spouses to be able to reach the "marital assets" of the pension. What about spouses that due to religious reasons do not seek divorce, but then are left out of the "marital assets" of the pension as they did not select a beneficiary to inherit after death? 

In contrast

If the party filed for separation, but made inaccurate statements about the election selected, could the courts order a QDRO after the death of the spouse to cure the separation order? If so, what would the spouse be entitled to receive?

 

 

[My 2 cents]

Plans not subject to ERISA (such as governmental plans) are not subject to ERISA's spousal consent requirements, but if the state requires it (or there is spousal consent language in the plan document) then spousal consent might be required.  Non-governmental plans are generally subject to ERISA's spousal consent requirements.

Irrespective of issues concerning spousal consent, nearly all (all?) pension plans must carry out the provisions of QDROs, which are not automatic when the participants divorce.  Further, I don't think that divorce must occur for there to be a valid QDRO, but most QDROs are issued in the divorce context.  Perhaps a suitable court DRO should be sought in some separation cases.  The primary burden for obtaining a DRO falls on the non-participant claimant.  Obtaining a DRO after the death of the non-participant spouse is somewhat unclear.  The biggest justification for QDROs is to provide for the support of dependents (i.e., the divorcing spouse), but under some circumstances there ought to be an equitable division of the pension.

Whatever option the participant selected, there could be a DRO issued to direct that a portion of each monthly payment be diverted from the participant to the alternate payee without disturbing the elected option. 

[Carol V. Calhoun]

A couple of things:

1. There is no such thing as a QDRO for a governmental plan.  If a plan complies with a domestic relations order (DRO), the tax consequences are the same as if the DRO had been a QDRO.  But any DRO valid under state law--not just a QDRO--can apply to a governmental plan.
2. There is no requirement that you get a divorce in order to get a DRO.  In some cases, for example, spouses will get one if they are reconciling, but want some protection in case the reconciliation doesn't work out.  So the fact that one's religious beliefs preclude divorce would not prevent someone from getting a DRO based on the separation.  This would seem to me to avoid the equal protection issue.
3. Because governmental plans are not subject to ERISA, they are also not subject to ERISA's preemption of state law.  Thus, you would look to state laws (both the pension plan itself, which is often a statute, and state domestic relations laws) to determine the extent to which a court could issue a DRO after death.