Waiver by New Spouse of QJSA in Favor of a Participant's Former Spouse.

The following cases hold that if a divorce Participant has remarried and retired before a QDRO has been perfected, Federal law holds that the Participant's new spouse vests in the right to receive the survivor annuity and the former spouse (prospective Alternate Payee) irrevocably(?) loses the right to receive that survivor annuity. 

Hopkins v. AT&T Global Information Solutions,  105 F.3d 153 (USCA 4th Cir. 1997) - at
http://scholar.google.com/scholar_case?case=9954117838131396049&q=hopkins+at%26T+global&hl=en&as_sdt=2,9

followed by Rivers v. Central and South West Corporation, 186 F.3d 681 (USCA 5th Cir. 1999)  at-
http://scholar.google.com/scholar_case?case=2296953953561556363&q=rivers+central+and+south+west&hl=en&as_sdt=2,9

Dahl v. Aerospace Employees' Retirement Plan, a 2015 case from the U.S. District Court for the Eastern District of Virginia (and cases cited therein) - 
https://scholar.google.com/scholar_case?case=3487596170773082469&q=dahl+v.+aerospace&hl=en&lr=lang_en&as_sdt=20000003&as_vis=1  

See also Vanderkam v. PBGC, 943 F. Supp.2d, 130 (2013) setting forth a thorough discussion of this issue.  

And the 2015 case of Dahl v. Aerospace Employees' Retirement Plan, No. 1:15cv611 (JCC/IDD), United States District Court, E.D. Virginia, Alexandria Division. https://scholar.google.com/scholar_case?case=3487596170773082469&q=dahl+v.+aerospace&hl=en&lr=lang_en&as_sdt=20000003&as_vis=1

But I come across statements from time to time that if the new spouse consents to waiving her right to survivor annuity benefits (how that happens is never addressed), then a QDRO can be effective to restore survivor annuity benefit to the former spouse.  

I also have contemplated what would happen is the new spouse predeceased the Participant, or if the Participant and the new spouse divorced, whether not a new QDRO could restore QJSA rights to the former spouse?

Any ideas?  Case law?  Statutory references? 

Thanks, 

David 

A Labor department rule describes some partial interpretations for some situations you mention.

29 C.F.R. § 2530.206 https://www.ecfr.gov/current/title-29/part-2530/section-2530.206#p-2530.206(a).

But consider these cautions:

Those interpretations are profoundly incomplete.

Some of the interpretations might be contrary to the statute.

Whatever deference this agency rule might get could become obsolete tomorrow or in the next few days.

To the extent, if any, that Chevron deference continues, some of the rule’s interpretations might not be a permissible interpretation of the statute.

As always, a court order that would call the plan to pay something the plan does not provide is not a qualified domestic relations order.

My only comment is that once the new spouse has “vested” because the participant has retired, anything that would defease the new spouse or “restore” the survivor annuity for an alternate payee could be adverse selection.  The plan would look disfavorably on it and could assert that any attempt to add a benefit through a QDRO would force the plan to pay a benefit that the plan is not otherwise obligated to pay —,thus disqualifying the DRO. This is most starkly illustrated by your suggestion of the death of the new spouse as an opening to award some benefit to the former spouse (other than sharing the life payments to the participant, which can always be done). The untimely death of the new spouse is a great thing for the plan from an actuarial perspective. Why would the plan give that up?

Beginning today, Federal courts no longer defer to an agency’s rule.

Loper Bright Enterprises 22-451_7m58.pdf

Both the majority and dissenting opinions express observations about what likely will result from yesterday’s decision. Time will tell.

Even following Loper Bright Enterprises, a Federal court interpreting ERISA § 206(d)(3)—or Internal Revenue Code § 414(p)—might be persuaded by the Labor department’s reasoning in 29 C.F.R. § 2530.206.

While several courts’ decisions cite that rule, I’ve seen no Federal court decision that applies Chevron deference to use an interpretation the opinion says would not have been the court’s independent interpretation.