Death QDRO

[Irma]

I was married for 25 years.  When we got divorced my ex warn me not to go after any of his finances or he would come after me.  When I went to the court date the judge saw I wasn't asking for anything and said "Oh no honey, I don't agree with this so I am leaving it open in case you change your mind".  My ex worked for 30 years for the same company and does have a pension.  While my ex was on vacation he had a massive heart attack and died in August 2018.  My ex never paid attention to important paperwork so when he died my 3 kids had to go to probate court to get ownership of his 2 homes.  I decided to get an attorney to go after the pension, so she has amend my divorce from 2005 requesting his 401k and pension, she also did a death QDRO.  I go to court on March 16th of 2020.  Is there anything any of you can recommend I ask the judge for?  My ex was 60 years old when he died and had not retired.  Thank you for any advice you can give me.

[Irma]

I tried to edit this but it didn't work.  I wanted to make sure everyone knows we did do a death QDRO and will be going to court on Monday, March 16, 2020 to see if the judge approves this, but I would like to get advice in case there is anything I should be asking the judge?

[Larry Starr]

On 3/7/2020 at 6:01 PM, Irma said:

I tried to edit this but it didn't work.  I wanted to make sure everyone knows we did do a death QDRO and will be going to court on Monday, March 16, 2020 to see if the judge approves this, but I would like to get advice in case there is anything I should be asking the judge?

You should be asking YOUR ATTORNEY for this advice.  This is NOT a place for legal advice of this nature. Obviously, you need an attorney who knows what he/she is doing; that's often the hardest part of the process.  Good luck.

[QDROphile]

My first thought response to the post was much the same as Larry Starr's, and I agree with that response.  But my second thought is that you (through your lawyer) should be asking the PLAN what you should be asking the judge.  Post-death QDROs relating to defined benefit plans are tricky because of IRC sections 414(p)(3) (A) and (B) and the potential for something like adverse selection (although the problem is not exactly adverse selection.  The issues are complicated and the guidance issued by the Department of Labor at the instruction of Congress (because matters of post-death QDROs were so misunderstood and sometimes difficult) WAS ABSOLUTELY USELESS. SHAME, SHAME SHAME ON THE DOL .  But what do you expect of an agency that doe not understand the law it is supposed to administer?  The  DOL QDRO Book has at least two material errors, so maybe useless guidance on post-death QDROS is an improvement.

Back  to the point.  Because the DOL failed to do its job, defined benefit pension plans were left with unanswered questions about how to deal with a post-death domestic relations order.  Well advised ones, of which there are very few when it comes to QDROs, created their own rules that try to be fair about allowing post-death QDROs, but also protecting plan assets against "adverse selection."  Such rules should be set forth in the written QDRO procedures that ERISA requires of plans.  So check with the plan to see if it has any guidance or limits relating to post-death QDROs to inform you (your lawyer) about what to ask for in anticipation of submitting the domestic relations order to the plan and setting expectations about whether you will have more or less trouble with the plan in the determination of qualification of the order.