QDRO Clarification after Death of Spouse - Order signed by Court 1/7/21

[Chiswick]

I need clarification on wording signed by the court on 1/7/21 - This Order assigns to the Alternate Payee, myself as the husband 55% of my ex-wife's Account as of December 31, 2018 including any investment experience thereon from December 31, 2018. She passed away in March of 2020. Funds have not been transferred as of yet. It states under Death of Participant: In the event that the Participant dies prior to the transfer of funds, such Alternate Payee shall be treated as the Participant's beneficiary to the extent of his assigned interest as set forth herein. My question: Does the amount of payment still hold at 55% as stated in the QDRO whether or not my ex-wife had signed the QDRO prior to her passing.

[ESOP Guy]

We need a lot more information. 

Just because a court accepted the order doesn't mean it is a QDRO.   At that point it is just a DRO.   It doesn't get the Q (for qualified) until the plan accepts the DRO as qualified.   So has the plan accepted the DRO as qualified?   Given the dates has the DRO even been sent to the plan? 

What do you mean the late wife hasn't signed the QDRO?   Did she agree to the split before it went to the judge?   As a rule, neither person signs the typical QDRO I get.  

There are some lawyers that come around here who know QDROs very well.   They should be able to give you insight what happens if it was a DRO the plan hadn't accepted yet or it was a QDRO the plan has accepted.   They should be able to tell you other important factors, but language and facts are going to be very important here to get a good answer in my mind.

To be clear I am not a lawyer just a CPA that helps companies run their plans, now just ESOPs now a days, including things like QDROs. 

[Chiswick]

It is a QDRO that has been accepted by the plan. Point of fact is that she never signed the QDRO only her son who is appointed to oversee her estate has signed it.

[ESOP Guy]

Based on what you are saying I don't see any reason why the split wouldn't happen per the terms of the QDRO.  

Maybe one of the QDRO experts will add if they agree or still see more issues. 

[david rigby]

As EG says, there is no requirement for either party to sign a QDRO (unless state law requires it).  A DRO is signed by the court.

[JM]

If the DRO was prepared and a request for order was approved by the court then the Judge can sign off on it making it an Order instead of Stipulation and Order.  The plan does not care if the parties signed off, only the court and they will review and determine if a QDRO or not.  One issue that could present a problem here is that if you were already divorced at the time of her death without a QDRO in place, her beneficiary designation on file with the plan could take precedence over the QDRO.  If she did not have a current spouse at the time of her death and your Judgment clearly awarded you an interest, my experience is that the plan will usually honor a posthumous QDRO.  However, you may need to talk to an attorney if the plan or her estate raises any issues with the validity of your QDRO.  This post should only be taken as general information only and should not be relied upon as legal, financial or tax advice.