Surviving Spouse

[ERISAAPPLE]

Assume you are drafting a DB plan.  The client says the only available benefit forms will be the single life annuity, 50% QJSA, 75% QOSA, and 50% QPSA.  The survivor benefits are fully subsidized, and all optional forms are actuarially equivalent. 

Assume further that the client asks the following.  He says he knows an employee is going to submit a QDRO that says the alternate payee is considered the participant's spouse solely for purposes of the QJSA, and not for any other purpose (including not for purpose of the QPSA).  He asked what will happen if the participant dies after submitting a distribution election form for the QJSA, but before payments actually begin.  He says in this regard he does not want the plan to offer one penny more or any option more than the law requires.

What is your response? Will the alternate payee receive the 50% survivor annuity under the QJSA or nothing because the participant died before the annuity starting date, i.e., pre-retirement, and the participant is not the spouse for purposes of the QPSA?  

[CuseFan]

The latter - assuming the participant truly dies before the ASD, provided the plan language supports, in my opinion. I've read some plans that say the election gets followed, so just make sure. Also, be careful as to what you consider the ASD. If the person retires and receives forms for a 9/1 ASD but doesn't return valid forms until 8/31, or 9/3, so payments don't get scheduled to commence until 10/1 (initial double payment) but then dies 9/15 - ASD is still 9/1 and person did not die before their ASD, so QJSA applies, not QPSA.