Distribution of NYCER PENSION benefits upon death

Good afternoon. First Thank you all for answering my previous questions in 2019. However, I’ve returned since then with a new discovery on the topic. Previously, I questioned if my mother was entitled to my fathers NYCER pension after death without a DRO.  Today, I would like to know If my mother is entitled to my fathers NYCER pension if she WAIVED her ALL her rights on the financial affidavit during there divorce? My mother signed her divorce decree stating,” she DIDNT want anything from my father”! The judge stated,” They both leave with what they own in there current possession! Any advise??

Extralegal question: If she expressly waived her interests, why are you trying to circumvent now?

Did he retire before or after the divorce?  

If he retired before the divorce, did he elect survivor benefits for his then current wife?  

Under New York law or under the terms of the Plan does that election of survivor benefits for his then current wife survive the divorce? 

Does that election of survivor benefits for his then current wife survive his retirement.  (Under the Maryland State Retirement and Pension System, for example, once the employee receives his first pension payment the survivor annuity election previously made is locked in and cannot be changed unless there was a previous QDRO entered by the court.)

In most cases the law governing the plan will preempt state law.  So even though the parties may have and Agreement, or the Court may order a certain outcome, the state (or the federal law) will preempt that outcome unless a QDRO had been entered.

For example, in PaineWebber v.  East, 363 Md. 408, 768 A.2d 1029 (2001) - which you can find at - 
http://scholar.google.com/scholar_case?case=14624602948014812254&q=paine+webber&hl=en&as_sdt=4,21, the husband failed to remove his ex-wife's name as beneficiary of his IRA account [IRAs are not subject by ERISA] valued at about $600,000.00 which, per the agreement of the parties, he was to retain as his property.  The husband remarried and then died without having changed the beneficiary.  The former spouse filed suit to recover the IRA balance arguing that she was the named beneficiary - which was true.  The Court of Appeals held that the former spouse would receive the money despite language in the separation agreement that provided: 

 "Each of the parties hereby expressly waives any legal right either may have under any Federal or State law as a spouse to participate as a payee or beneficiary regarding any interests the other may have in any pension plan, profit-sharing plan, or any other form of retirement or deferred income plan including, but not limited to, the right either spouse may have to receive any benefit, in the form of a lump-sum death benefit, joint or survivor annuity, or pre-retirement survivor annuity pursuant to any State or Federal law, and each of the parties hereby expressly consents to any election made by the other, now or at any time hereafter, with respect to the recipient and the form of payment of any benefit upon retirement or death under any such pension plan, profit-sharing plan, or other form of retirement or deferred income plan."

    An IRA does not fall under ERISA, but the outcome was the same.  Noted astrophysicist, Neil deGrasse Tyson, has confirmed that everyone in the known universe and beyond understood the clear intention of the parties in the PaineWebber v. East case.  Somehow our appellate courts in Maryland were unable to find any theory that might have recognises and implemented that intention.  Like the imposition of a constructive trust, or the theory of unjust enrichment. 

So a lot will depend on the timing of events and the law of New York and the terms of Plan itself.  See attached. 

David

NYCERS.pdf