Terminating DB Plan - Divorced Participant in Pay Status

Terminating Plan.  Participant who has been in pay status for about 25 years, who was divorced sometime after his benefits commenced in the form of a QJSA, and who never informed the Plan that he was divorced, is now complaining about benefit information received from the annuity provider that his former spouse is his joint annuitant as he does not wish his former spouse to receive anything.  The divorce occurred after benefits commenced and the participant never notified the plan administrator that he was divorced.  Based on current information, the divorce decree did not specifically address pension benefits and no QDRO was entered.  The plan does not provide for substitution of a joint annuitant after benefits have commenced.

I am leaning towards responding to the participant that his former spouse remains his joint annuitant unless he can provide evidence of a court order that his spouse is not entitled to survivor benefits if he dies before his former spouse, or at least the date and court in which the divorce was granted if there is any obligation for the plan administrator to search for an order.  I cannot imagine that such an order would be granted, but you never know. 

Thanks for any helpful insight.

Generally, 99.9% of the time, once the participant commences payment, nothing can be changed related to the form of payment.  Sometimes the payment of the benefit is split via QDRO, but the form remains unchanged.   The spouse that he was married to at the time of benefit commencement is still the beneficiary.  

Does this participant have any standing to "complain"?  Is this participant making a "claim"?  As Effen implies, there may be nothing to do, such that the question might be easily answered by providing a copy of the SPD (although it's possible the SPD is not specific enough), or (even better) provide the plan's definition of Spouse or definition of J&S.

If you don't have a QDRO in hand then you have no right or obligation to investigate whether or not some person out there  is entitled to retirement or survivor annuity benefits.  See the attached DoL Advisory Opinions. 

BUT If the Participant retired during the marriage he would have been required by the REA - 29 USC Section 1055(a)(d) that you can find at 

https://www.law.cornell.edu/uscode/text/29/1055#:~:text=§ 1055-,29 U.S. Code § 1055 - Requirement of joint and,annuity and preretirement survivor annuity&text=in the case of a vested participant who dies before,surviving spouse of such participant.  [and see attached from the Internal Revenue Manual Section 4.72.9.3.5 and see  ERISA § 205(a)-(d), and see 26 CFR § 1.401(a)-20 - answer 25(b)(3).   If an employee retires while still married, the spouse will receive a survivor annuity (unless waived by the spouse) and no subsequent divorce will undo that mandatory election regardless of whether or not the parties or the judge have addressed it in the divorce proceeding.] 

to name his then spouse to receive a QJSA and a QPSA, and that election would survive a later divorce, unless the spouse affirmatively waived such benefits. 

If you have the documents he submitted at the time of retirement you should have the answer to his problem if his divorce occurred after that date.  The spouse is covered for survivor annuity benefits per 29 USC 1055 and not by reason of a QDRO that is preempted by Federal law, BUT only for a share of his survivor benefits and but not for a share of his retirement annuity benefits during his lifetime. That would require a QDRO.  

The fact that he did not tell you he was divorced makes no difference if the QJSA and QPSA were locked in at his retirement.  Let's hope you have his retirement application that would show a waiver, but even if you don't, you have the law on your side. 

David

Advisory Opinion 1992-17A - duty of Plan Admin.pdf Advisory Opinion 1999-13A _ U.S - Sham Divorces.pdf DoL Advisory Opinion 1990-46A.pdf IRS Manual section 4.92.9.3.5.pdf