After death QDRO

[Michael Iglesias]

My cousin was in the final stages of a divorce and there was an agreement on NYCERS pension. Unfortunately he took his own life before it was finalized. Furthermore, he retired and received his 1st check. In the event he didn't leave her as beneficiary and elected maximum option as his temporary option,  will NYCERS accept an " After death " QDRO.

[Effen]

Spouse would have had to consent to that option.  

[MoJo]

2 hours ago, Effen said:

Spouse would have had to consent to that option.  

I believe NYCERS is a governmental plan - which may not have spousal consent in it.  Certainly not required under Federal law.  Can't say about NY law, or plan provisions....

[Effen]

You are correct.  After reviewing SPD, it appears no spousal consent would have been required.  

SPD is public and can be found with google search

[Michael Iglesias]

In the divorce proposal there was no objection to the%50 option by  the diseased, however, terms were never finalized. Thus, no DRO recorded.

So, would NYCERS have to accept a Death after QDRO if filled with the court. I haven't read anything relating to this unique set of circumstances.

 

[MoJo]

1 hour ago, Michael Iglesias said:

In the divorce proposal there was no objection to the%50 option by  the diseased, however, terms were never finalized. Thus, no DRO recorded.

So, would NYCERS have to accept a Death after QDRO if filled with the court. I haven't read anything relating to this unique set of circumstances.

 

I don't think anybody here can answer the question - as a lot of factors weigh in on that determination.  Suffice it to say that a DRO (it's only a QDRO when the plan administrator says it is) can not force the plan to do something it's terms, or applicable law says it can't do.  Often once a benefit election is made and the benefit is being paid, it is irrevocable - and no DRO can make it revocable.  The recourse - if any available -would be against the participant (or their estate) . Likewise, once a benefit "expires" (often the result of the death of the recipient), it can't be resurrected.

Best bet is to talk to an attorney familiar with governmental plans in NY, if not the NYCERS plan itself.

[fmsinc]

You have a number of possible approaches.  The first would arise if NYCERS is subject to ERISA.  I don't think it is, but pursuant to the Pension Protection Act of 2006 ("PPA") a post mortem QDRO is acceptable.  See 29 CFR 2530.206. 

It is possible that a plan not subject to ERISA may still permit post mortem QDROs under state law.  See for example the Maryland case of  Robinette v. Hunsecker, 212 Md.App. 76, 66 A.3d 1093, 293 Ed. Law Rep. 892, (2013) involving a Plan under the auspices of the Maryland State Pension and Retirement System and not subject to ERISA or to the PPA.   

In other jurisdictions the approach is to allow the entry of a nunc pro tunc QDRO in a manner that backdates the QDRO to a date prior to the Participant's death.  See, e.g., Rivera v. Lew, District of Columbia Court of Appeals, On Certification from the United States Court of Appeals for the District of Columbia Circuit, Case No. 14-SP-117, 99 A.3d 269 (2014). 

 

See also Patterson v. Chrysler Group, LLC,  Case No. 15-10563, United States District Court, E.D. Michigan, Southern Division (February 17, 2016) - 
https://scholar.google.com/scholar_case?case=17997658400954740315&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt.  Holding that a nunc pro tunc QDRO entered by a State court trumps ruling of Plan Administrator that the “QDRO” submitted did not satisfy ERISA requirements so as to make it acceptable as a valid QDRO that the Plan was required to implement during the lifetime of the Participant.  This case was reversed on other grounds by the US District Court of Appeals, 6th Circuit, 845 F.3d 756 (2017), but the opinion is worth reading.  You can find it at https://scholar.google.com/scholar_case?case=17591176685277926266&q=patterson+v.+chrysler&hl=en&lr=lang_en&as_sdt=4000800000000000000ffffffffffffe04&as_ylo=2017&as_vis=1