Ex husband's defined pension plan from previous employer now he is deceased - how to get his pension

[Lisa Souza]

My ex-husband died 4 years ago. He had a TBI for 12 years.  I got a letter from the fire department he worked for telling me contact his previous employer because the pension company saw his obituary and they wanted to contact family for his pension. We were married while he worked for this previous employer and then moved to Florida.  He never contacted them again.  We were divorced and no QDRO was completed. 

I read some ERISA regulations that stated that the wife is beneficiary unless signs a notarized paper go give it someone else. Documents, such as, who is beneficiary must be kept indefinitely by company while other documents only kept 7 years.  They say they have no documents, of course.

I was told 3 different stories from the previous employer:

1. Wife gets pension, if divorced and no QDRO filled out then ex-wife gets pension.

2. Will go through his estate and give to his daughters.

3. I appealed the decision and now they say that no one gets his pension.

This sounds a little fishy.

How can they just keep his pension funds??

Supreme Court Case Egelhoff vs Egelhoff decision sided with ex-wife to receive pension money since it came under ERISA and she was his wife at the time he worked for company and no QDRO or changes made to beneficiary.

So, my question is - how can my ex-husband's previous employer and the pension company legally not disperse his pension?  The company searched me out because I did not know him being entitled to this pension.

 

Thanks for any information someone might have to help me.

LisaPension information for ex-wife and Supreme Court Ruling.docx

[QDROphile]

Your message suggests that your former spouse worked for a government entity. If so, the pension arrangements are probably not subject to ERISA and the common knowledge that goes with the body of law under ERISA. The plan terms, which may be statutory, will determine survivorship rights. You will not be able to get your answers based on general knowledge and expertise, only specific attention to your situation and the related plan.

It is possible that the employer was not a governmental entity, but a nonprofit organization instead, and ERISA may apply.

[david rigby]

QDROphile always provides good advice.  However, I read the original post to imply that the "previous employer" was NOT a government entity, in which case the ERISA provisions about QDRO's will apply. 

The last sentence of the first paragraph "...no QDRO was completed" might imply a different problem: 

• is the lack of a QDRO because no one ever got around to it? or
• because such property division was not included in the divorce document(s)?  (If not included in original property division, the court may be reluctant to re-open the issue.)  or
• something else?

The answer to all of the above must start with:  You need a lawyer who is very familiar with QDROs.

[QDROphile]

Good for you David for reading more closely to determine that the employer with the pension plan of interest was not the fire department.

The convoluted explanation and irrelevant reference fooled me.

[Effen]

Also, because she mentioned he worked for a "fire department", it is very possible that he made employee contributions.  To the OP's question, "How can they just keep his pension funds?", they can't, if you are referring to money he contributed towards the cost of his pension.  Those will need to be paid to someone.  

As David said, You need a lawyer who is very familiar with QDROs., but I would add that having one who is also familiar with the plan involved is also important, if you can find one.

 

[CuseFan]

What they all said (especially the lawyer part) and you may still have the ability to get a domestic relations order for a marital share/survivor benefit.

[fmsinc]

You first need to know whether or nor the Plan is governed by the Federal law, ERISA, and if he retired during the marriage or after the divorce.  So you first job is to tell us the exact name of the Plan, or you can look it up yourself at

 https://www.efast.dol.gov/5500Search/

where all ERISA qualified plans must file a form 5500 every year.  You can search by plan name or by the plan sponsor.

The Plan might be governed by another Federal law (such as FERS or CSRS or the Military or the Foreign Service) or by a State, County, City or Municipal plan, and in some plans the election of a survivor annuity for a former spouse does not survive the divorce and must be crated or reinstated by a QDRO style document. QDRO stands for Qualified Domestic Relations Order and only apply to ERISA qualified plans.  Other plans use other name such as Eligible Domestic Relations Order, Domestic Relations Order, Retirement Benefit Order, etc.  The failure of the lawyer who represented the former spouse in this case might be sued for malpractice and incompetence for not following up and making sure the QDRO was entered by the Court and approved by the Plan Administrator. 

The good news you are looking for is that it is in fact an ERISA plan that would be subject to the Pension Protection Act of 2006 that permits the entry of a QDRO post mortem. 

The bad news this that if the Participant remarried and then retired his new spouse would be entitled to the survivor annuity and not the former spouse.  See for example,  Hopkins v. AT&T Global Information Solutions,  105 F.3d 153 (1997) at
http://scholar.google.com/scholar_case?case=9954117838131396049&q=hopkins+at%26T+global&hl=en&as_sdt=2,9
followed by the 5th Circuit in 1999  Rivers v. Central and South West Corporation, 186 F.3d 681 (United States Court of Appeals, 5th Cir. 1999)  at-
http://scholar.google.com/scholar_case?case=2296953953561556363&q=rivers+central+and+south+west&hl=en&as_sdt=2,9

and a number of other cases. 

If you want to send me a copy of the Marital Settlement Agreement and the Judgment of Divorce and the exact name of the Plan I might be able to figure out you situation find a lawyer in your state that would be able to help.  My email is marylandmediator@gmail.com. 
 

[Lisa Souza]

Thank you for your information.  It is a defined pension plan with a private company. I am pretty certain that it is covered by ERISA. My ex-husband never remarried and we never filled out a QDRO.  My divorce lawyer never even mentioned this to me.  Divorce only lists child support payments, debts we were both responsible for and that we both owned land and Bob had to quit claim all of his rights to the land. NO mention of pension plans or 401 K's.  I had a lousy lawyer and is probably deceased by now. Bob didn't even show up for the hearing.

The company sent me copies of some pages of the pension plan.  However, I noticed there are no logos of the pension company on them, not even the pension company name.  The bottom of these pages have a date of January, 2013.  How am I supposed to know if these copies are legit?  Should I reach out to the pension company?

I need to look further into the Pension Protection Act of 2006 and how you would submit a QDRO post mortem.

Lisa 

[Bill Presson]

Ms Lisa, you're wasting your time unless you get a lawyer. Find one in your area (nearest big city) that is familiar with ERISA QDROs.

[Lisa Souza]

You are right.  I need to talk to a lawyer.  The employer says I have 60 days to appeal again and at least I can schedule a free consultation.

 

Thank you so much Bill!

[Bill Presson]

Best of luck, Ms Lisa!

[faelinbriar]

I'm really sorry you’re going through all this, it definitely sounds frustrating and confusing, especially with the conflicting stories you’ve been told. I’ve dealt with something somewhat similar regarding survivor benefits after a divorce, and I can confirm it’s a tricky area, especially when ERISA, QDROs, and plan-specific rules all come into play.

As others mentioned, whether or not ERISA applies hinges a lot on whether his former employer was a government entity. If it was a governmental or fire department pension (which it sounds like), then ERISA may not govern it, and instead, the plan will follow local or state retirement rules. This could be why they’re saying “no one” now qualifies, depending on how they interpret those rules and the lack of a QDRO.

The part you brought up about Egelhoff v. Egelhoff is a strong point, but just remember that the outcome of that case depended heavily on the fact that ERISA applied and preempted state law. If this is a public pension plan, they might not be held to the same standards. You might want to push for a written explanation of their denial, so you can properly respond or appeal.

Another thing that could help, especially if you're unsure whether any payout is still pending or how it's calculated is checking the value using a pension or separation estimate tool. The End of Service Calculator can give you an idea of what the benefits might have been worth if they had been distributed, which might help you better understand what’s potentially being withheld. It’s not official, of course, but it can help frame the value of what’s being disputed and whether it’s worth pursuing legal action.

Ultimately, I agree with others here, this is definitely a situation that calls for a lawyer who is experienced in divorce and pension law, especially with public retirement systems. A clear timeline and documentation will go a long way in sorting this out.

Wishing you clarity and a fair resolution.