401k entitlement

[Sheila Mitchell]

My ex husband and I were married for 17 years he worked at his job for 22 years and was still employed at time of death. Am I able to draw his 401k. He had 1 daughter and i am sure she was beneficiary over everything. Can someone please help me or give me information on where to start. I live in Florida. Am I eligible for his 401k he was never remarried.

[QDROphile]

If you divorced during his employment you would be entitled to benefits under the 401(k) plan only if any of the following apply:

1.  You were awarded an interest under the plan in connection with your separation or divorce as part of the divorce proceeding.  Other conditions also apply under this item, including submitting a domestic relations order to the plan that is determined by the plan to be a qualified domestic relations order (QDRO).

2.  Your ex did not remarry, left you as a designated beneficiary after the divorce, and the plan does not have terms that automatically designate someone other than you (former spouse) as a consequence of the divorce.

3.  Your ex designated you as a beneficiary after the divorce and either did not remarry or complied with spouse consent rules of the plan if he did remarry.

My guess is if you did not get formally awarded an interest in the plan as part of the divorce proceeding (#1), you have no right to anything under the plan.  It may be possible to get a court to award you an interest now, but that is unlikely under the law in most states. I know nothing about the domestic relations law of the F state.  If awarding you an interest under the plan was not contemplated in the divorce proceeding and you were represented in the divorce proceeding by a lawyer, you might have a claim against the lawyer for malpractice. That would also be a matter governed by state law.

[Sheila Mitchell]

I did not ask for anything under his plan I had no idea that I would qualify for that. He and I had been divorced for 4 years and a friend of mine told me that I am qualified in Florida. Thanks for the help will reach out to the department of labor.

[QDROphile]

If you are looking for help in this situation, the Department of Labor is not your best pursuit. Because you ceased being a spouse while the participant was still employed, your rights really originate under state law, specifically state domestic relations law.  The Department of Labor has no interest in matters of state law.

While your friend is correct that you had certain limited rights under the plan according to federal law (which is the province of the DOL) that was because you were a spouse of the plan participant.  When you ceased to be a spouse, that changed.  Federal no longer cares about you, except to require a plan to give effect to a qualified domestic relations arising out of your divorce proceeding.  Federal law also provides you some rights if you are named as a beneficiary  independent of your former status as a spouse.

Your friend is probably right that the 401(k) plan is an asset that can be divided in a divorce, thereby providing you with a potential right under the plan, but that has to be established in the divorce proceeding.

Because you are post-divorce, your only recourse, if any, is under state law.  You need lawyer in your state to advise you about what is still possible under state law.  You are wasting your time and the DOL’s time if you go there.  And the DOL will also do nothing until you have contacted the plan and been rebuffed.