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My ex and I never signed our QDRO. He recently passed away and I went to claim my portion of the pension. That's when I found out. Is it an issue getting it signed off by the judge now? Is there case law that supports a judge signing it? BTW it is discussed in detail in my divorce decree if that helps. TY

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This will be decided under state law and procedure. You need to find an experienced Illinois attorney. It probably will help that was discussed in detail in divorce decree.

Luke Bailey

Senior Counsel

Clark Hill PLC

214-651-4572 (O) | LBailey@clarkhill.com

2600 Dallas Parkway Suite 600

Frisco, TX 75034

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  • 3 weeks later...
  • 2 weeks later...

You have said that you are dealing with a QDRO so that means the Plan is governed by the Employee Retirement Income Security Act of 1974.  And you used the word "pension" so that suggests that you are dealing with a defined benefit plan.

The Pension Protection Act of 2006 permits the entry of a post mortem (after death) QDRO.  See https://www.law.cornell.edu/cfr/text/29/2530.206

Tell you lawyer to check out these cases: 

Thomas v. Sutherland at
https://scholar.google.com/scholar_case?case=1601430218420084129&q=Thomas+v.+Sutherland+&hl=en&as_sdt=20006 where the U.S. District Court in Utah held:

        "Although there is no case law precisely on point, the supporting material suggests that this is the appropriate result.  The Code of Federal Regulations provides that a DRO does not fail to be treated as a QDRO solely because of the time at which it is issued. 29 C.F.R. 2530.206(c)(1). This includes orders issued after the participant's death, and occasions where a divorced spouse no longer meets the technical definition of a "surviving spouse" under the terms of the plan. 29 C.F.R. 2530.206(c)(1)(ex. 1 & 2). In addition, the Eighth Circuit has found that a domestic relations order can be qualified posthumously if notice is given and the order is filed during the eighteen-month period permitted under ERISA to secure a QDRO. Hogan v. Raytheon, 302 F.3d 854, 857 (8th Cir. 2002). Although different than the case at hand, the trend has been to enforce the terms of an otherwise valid QDRO as it was intended to be enforced, so long as notice was given and the order was filed during the period permitted under ERISA."  

    See also, Yale-New Haven Hospital v. Nicholls, 788 F.3d 79, 85 (2d Cir. 2015) where the Court held that two nunc pro tunc Orders issued after the death of the Participant were valid QDROs.  Said the Court:   

        “Domestic relations orders entered after the death of the plan participant can be QDROs. In the Pension Protection Act of 2006, Congress made clear that a QDRO will not fail solely because of the time at which it is issued, see Pub. L. No. 109-280, § 1001, 120 Stat. 780 (2006), although several of our sister circuits had already reached that conclusion, see, e.g., Files v. Exxon Mobil Pension Plan, 428 F.3d 478, 490-91 (3d Cir. 2005) (finding that a posthumous order constituted a QDRO), cert. denied, 547 U.S. 1160 (2006); Patton v. Denver Post Corp., 326 F.3d 1148, 1153-54 (10th Cir. 2003) (same); Hogan v. Raytheon Co., 302 F.3d 854, 857 (8th Cir. 2002) (same); Trs. of Dirs. Guild of Am.-Producer Pension Benefits Plans v. Tise, 234 F.3d 415, 421-23 (9th Cir. 2000) (same).”

....and  Miletello v. R M R Mechanical Inc., 921 F.3d 493 (USCA 5th Cir. 2019) 

I can provide his with other case citations and theories for asking for a post mortem QDRO if the Plan is not under ERISA.

You attorney should have no problem obtaining a QDRO for you share of your late spouse's benefit, UNLESS, there was a delay that would cause you to lose benefits, for example, if your ex remarried and then retired his new spouse would be entitled to the survivor annuity benefits and you would not. 

Good luck,

David

 

 

 

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1 hour ago, fmsinc said:

You have said that you are dealing with a QDRO so that means the Plan is governed by the Employee Retirement Income Security Act of 1974.

fmsinc, as a point of information, in my experience most lawyers (both with firms and in-house with plans) working with governmental plans call state law orders dealing with divisions of retirement benefits in divorce "QDROs" even though not governed by ERISA.

Luke Bailey

Senior Counsel

Clark Hill PLC

214-651-4572 (O) | LBailey@clarkhill.com

2600 Dallas Parkway Suite 600

Frisco, TX 75034

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Emme: You need to deal with the plan with respect to the payment of benefits on the death of the participant. The plan will be looking to pay benefits to someone, and someone else may be claiming those benefits. You need to take measures to make sure that benefits you hope to be yours are not paid to some death beneficiary while you get matters relating to your domestic relations order straightened out and submitted to the plan. There are various approaches to this, but you should not rely on any informal contact you have had with the plan concerning your claim for benefits.

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