Surviving spouse, non-QDRO counter claim

[Jessalynn]

Background: Married in ‘16 then Oct ‘17 accident in CO, I survived my husband did not. I hire a accident firm. Life insurance is under ERISA which is based off 2x’s wage(there’s an annual raise). Within the first week the ex submitted a claim and was told she wasn’t listed as the beneficiary. She hires a lawyer. DRO from 2014 does not have plan names or amounts. Jan.-employer sends them a non-QDRO letter. Feb.-they open a motion to clarify for DRO to insert 2014 amounts and judge tells them they need to figure out who to substitute in due to death. Around the same time my accident lawyer contacts the ex to ask if she’ll sign for a QSF to work out details of wrongful death suit that will go to husband’s daughter. Her lawyer contacts my accident lawyer trying to get 2014 life insurance information. My lawyer informs him she’s only handling the accident case. The ex’s lawyer decides to fight QSF since he can’t get 2014 information. In May he starts declaratory judgment case against the employer and me while also asking the court to weight the life insurance and wrongful death amounts against each other. Case is transferred to federal court under ERISA. Oct ‘18 passes by and I don’t have to open the estate since we were co-signed on house and totaled out truck. I hear nothing back about modifying the DRO, I think they missed the 90 day to substitute someone in. No claims come in to estate from ex’s lawyer, he still just wants 2014 information. Jan ‘19 judge dismisses case and separates wrongful death back to state court. Feb ‘19 ex’s lawyer rewrites his case against employer to ask that DRO be considered a QDRO and asks court to consider extending time to sue the estate if not QDRO. He then also starts a conversion case against me at state court saying I’m controlling the funds that the employer has not paid out yet since I won’t sign them over.

Question: Have you ever seen a statue of limitations to submit a claim against an estate extended relating to an ERISA benefit? I am excused from the ERISA case but have been keeping tabs on it with my pacer login. New case against me brings up my accident lawyer, so she is going to respond asking for fees and harassment since the other judge in the dismissal hinted to the ex that I’m not apart of the DRO.

[fmsinc]

I fear that your fact pattern is so complex that nobody on this message board, including me, can follow it.  You have gone far beyond our level of expertise here, which is limited to QDRO related matters. 

If you could restate the facts relating only to the dispute, if any, with respect to life insurance, the dispute with regard to any defined contribution plan benefits, the dispute with respect to any defined benefit plan benefits, that would be a good start.  Don't use abbreviations. Note that a DRO is a Domestic Relations Order before it is approved by the Plan, at which point it becomes a  Qualified Domestic Relations Orders.  So even though courts routinely enter QDROs, they are not really.  

Also note that questions about statutes of limitations are different from state to state.  So tell us the state that all of this legislation is pending.

Also, the full and exact names of the plans involved (there are 980,000+ pension and retirement plans in the US) and the name of the plan sponsor (the employer).  Then maybe we can assist you.  

 

DSG  

[Jessalynn]

Sorry thought I was helping by including history on how this mess is going, trying not to leave out info.

Colorado- CO Rev Stat § 15-12-803 (2016) (III) As to all creditors, within one year after the decedent's death.

Exxon’s Basic Life Insurance, SPD confirms it’s under ERISA, and the ex-wife is not fighting that this is an ERISA issue.

My husband’s ex-wife is asking that her 2014 Divorce Papers, which are missing the life insurance plan names and dollar amounts(2 of the main 4 QDRO requirements) to be considered a QDRO. In the life insurance section of the divorce papers it says “deceased should have ex-wife listed as beneficiary on all life insurance” There is nothing in the divorce papers about the pension or retirement plans, she waved those sections. But it’s looking like her lawyer is starting to understand that the papers will not be considered a QDRO since they’re missing information. It’s been 1.5 years since my husband died. Her lawyer is asking the judge that all this time spent trying to find out the plan names and amounts be considered discovery so he can potentially sue the estate, which I never had to open and is outside the 1 year. So just wondering in cases where there is no QDRO, what do people try to do if there was a breach in contract from divorce papers? Trying to figure out how to prepare for when the funds are actually released to me, especially because her lawyer is already suing me for not voluntarily telling Exxon that I hand over the life insurance. 

[fmsinc]

SEE MY RESPONSES: 

Sorry thought I was helping by including history on how this mess is going, trying not to leave out info.

Colorado- CO Rev Stat § 15-12-803 (2016) (III) As to all creditors, within one year after the decedent's death. IT LOOKS LIKE THEY ARE FILING A CLAIM AGAINST THE ESTATE IN HOPES OF HAVING THE COURT EITHER: (I) ISSUE A POST MORTEM (POSTHUMOUS) QDRO PER THE PENSION PROTECTION ACT OF 2006, GIVING THE EX WIFE THE LIFE INSURANCE PROCEEDS SHE WAS PROMISED IN THE DOCUMENT (JUDGMENT OF DIVORCE OR WRITTEN SETTLEMENT AGREEMENT), AND ALSO THE SURVIVOR ANNUITY BENEFITS UNDER HIS PENSION PLAN THAT I ASSUME WAS ALSO ORDERED BY THE JUDGMENT OF DIVORCE OR SETTLEMENT AGREEMENT); OR, (II) DECLARE THAT THE JUDGMENT OF DIVORCE ITSELF OR THE WRITTEN SETTLEMENT AGREEMENT MEETS ALL OF THE REQUIREMENTS OF ERISA AND THE REA AND SHOULD BE CONSIDERED TO BE QDROS FOR THE PURPOSES SET FORTH IN "(I).  THE PROBLEM WITH "(II)" IS THAT THE DETERMINATION OF WHETHER IT'S A QDRO IS MADE BY THE PLAN ADMINISTRATOR AND NOT BY THE COURT.  

SO THE FIRST QUESTION IS WHETHER OR NOT THEY ARE PRECLUDED FROM DOING THE ABOVE BY THE COLORADO STATUTE OF LIMITATIONS AS IT APPLIES TO CLAIMS AGAINST THE ESTATE?  IT MAY BE THAT THEY SHOULD HAVE FILED THEIR MOTIONS IN THE ORIGINAL DIVORCE CASE AND SERVED THE PERSONAL REPRESENTATIVE OF THE ESTATE RATHER THAN FILE A CLAIM IN THE ESTATE CASE.  IT MAY BE THAT THEY HAVE ANOTHER OPTION OF CLAIMING THAT A QDRO BE ENTERED NUNC PRO TUNC (NOW FOR THEN)...OR MAYBE THEY HAVE DONE THAT ALSO.  SEE ATTACHED MEMO RE: POST MORTEM AND NUNC PRO TUNC QDROS.  Post Mortem & Nunc Pro Tunc QDROs.pdf

Exxon’s Basic Life Insurance, SPD confirms it’s under ERISA, and the ex-wife is not fighting that this is an ERISA issue.  

My husband’s ex-wife is asking that her 2014 Divorce Papers, DO YOU MEAN A SETTLEMENT AGREEMENT, OR DO YOU MEAN THE JUDGMENT OF DIVORCE? which are missing the life insurance plan names and dollar amounts(2 of the main 4 QDRO requirements) to be considered a QDRO.     In the life insurance section of the divorce papers it says “deceased should have ex-wife listed as beneficiary on all life insurance” There is nothing in the divorce papers about the pension or retirement plans, she waved those sections. IF THIS IS THE CASE I DON'T SEE HOW THEY HAVE ANY CLAIM AGAINST SURVIVOR BENEFITS, UNLESS HE RETIRED BEFORE HIS DIVORCE FROM THE EX-WIFE AND SHE WAS NAMED BY OPERATION OF LAW AS HI SURIVOR ANNUITY AND DID NOT WAIVE WITH THE COMPANY (NOT IN THE AGREEMENT).  But it’s looking like her lawyer is starting to understand that the papers will not be considered a QDRO since they’re missing information. It’s been 1.5 years since my husband died. Her lawyer is asking the judge that all this time spent trying to find out the plan names and amounts be considered discovery so he can potentially sue the estate, which I never had to open and is outside the 1 year. So just wondering in cases where there is no QDRO, what do people try to do if there was a breach in contract from divorce papers? Trying to figure out how to prepare for when the funds are actually released to me, especially because her lawyer is already suing me for not voluntarily telling Exxon that I hand over the life insurance. NOTE THAT IN MOST STATES A SUIT AGAINST THE ESTATE WILL ONLY RELATE TO ASSETS OF THE ESTATE.  ANYTHING  THAT YOU AND YOUR HUSBAND OWNED JOINTLY OR AS TENANTS BY THE ENTIRETIES WILL PASS TO YOU BY OPERATION OF LAW OUTSIDE OF THE ESTATE, THAT IS, WILL NOT BE IN THE ESTATE.  LIFE INSURANCE POLICY PROCEEDS WILL GO TO THE NAMED BENEFICIARY AS A MATTER OF CONTRACT (AND ERISA LAW) AND PASS OUTSIDE OF THE ESTATE.  SO UNLESS THE ESTATE HAS ASSETS, THERE WILL BE NOTHING FOR THEM TO RECEIVE.  

QUITE FRANKLY THE EX WIFE SHOULD SUE THE LAWYER WHO REPRESENTED HER IN THE DIVORCE FOR MALPRACTICE  AND SHOULD REPORT HIM TO THE OFFICE OF ATTORNEY REGULATION IN COLORADO - http://coloradosupremecourt.com/Complaints/File_Complaint.asp

FOR FAILING TO PREPARE AND FILE THE APPROPRIATE QDROS, HAVE THEM SIGNED BY THE COURT THAT GRANTED THE DIVORCE AND SEND CERTIFIED COPIES TO THE APPLICABLE PLAN ADMINISTRATORS.  CLEAR MALPRACTICE IN MY OPINION.  HERE IS AN ARTICLE FROM A LEADING QDRO EXPERT IN NEVADA, BUT HIS WORDS APPLY TO ALMOST EVERY STATE.  THERE MAY BE A STATURE OF LIMITATIONS ON HER ABILITY TO SUE THE LAWYER AN I WOULD NOT BE SURPRISED IF HE WAS RUNNING OUT THE CLOCK WITH ALL OF HIS FILINGS SO THAT WHEN HE LOSES IT WILL BE TOO LATE FOR HER TO SUE HIM.  I HAVE SEEN THIS HAPPEN BEFORE.  SORRY TO BE SO CYNICAL.  THAT'S WHAT HAPPENS WITH 52 YEARS OF LAW PRACTICE AND 31 YEARS OF QDRO PREPARATION.  Malpractive - Lawyer Liability in QDRO Cases - Willick.pdfMalpractive - Lawyer Liability in QDRO Cases - Willick.pdf

YOU NEED TO FIND A KNOWLEDGEABLE LAWYER IN COLORADO.  I REGRET THAT I DON'T KNOW ANYBODY WHO UNDERSTANDS THIS STUFF.  

DAVID

 

[Jessalynn]

There’s no claim against the estate yet, but I found a probate lawyer just incase. It’s 1 year to put a claim in against the estate in Colorado. The husband’s ex didn’t use a lawyer when they did their Divorce Decree/ judgement. Only thing in there is the life insurance part she waved everything else. But I kind of wonder now, that his ex might have a malpractice case against her current lawyer? Exxon told him what information to try and get added to the divorce decree so they can consider it QDRO. Her lawyer had a motion to clarify entered on the divorce decree last year, and that judge said ok, but they need to tell the court who should be substituted in for the deceased. Her lawyer failed to respond in time (90 days) I think. Her lawyer is trying to sue Exxon now because of all the time that has passed and he followed their advice on trying to update the DRO but failed. He also didn’t put a claim in on the estate within the first year and is trying to find out from the federal judge if he can.