All Activity

Thank you, Artie - that's very helpful. If I understand you correctly, even though I already know that I am not the named beneficiary, since money was apparently paid out under particular contracts to the ex-wife (by recently-filed estate tax docs), I can file a formal written claim (with the employer, whom I expect would be the plan administrator, but can find out). This will be denied, but I'll receive an explanation and then have a right to request and receive at a minimum the (complete?) beneficiary form, and possibly any relevant document with information about the plan type. Question: when you say " the beneficiary form that was used", to the best of my understanding, beneficiary forms will generally list contingent beneficiaries, but not the plan name or type, just the contract number. Is that correct? If so, receiving a complete form would at least get me part of the information I need. We're within a year of my dad's death, and I couldn't have been aware of the benefit before last August, so I'll check on limitations. Much appreciated.

The phrase "funded" means something different in this context. there is the legal meaning and the generic meaning. 457(b)s, if properly structured, are legally unfunded. Did you ever file a claim for benefits under either of these plans. Though 457(b)s, if properly structured are not governed by ERISA, they still have to follow the ERISA claims and appeals rules. When did the participant die? You never state that... there is a statute of limitations on claims, depending on the state you are in or the terms of the plan. Assuming the statute hasn't run, you could have filed a formal written claim under the plan. Under the rules the plan administrator can't ignore a form written claim and they are required to issue a formal written denial letter. Under the regulations, that denial must explicitly state the exact reasons and cite the specific plan documents or forms they relied on to pay out the benefits. Furthermore, under ERISA claims rules, once an adverse determination is made, the claimant has a right to request and receive copies of all "relevant documents, records, and other information" free of charge. This is the mechanism that legally forces the employer to hand over the beneficiary form that was used. Also, if you go to court without following this form administrative claim procedure, the employer will have an affirmative defense that you failed to "exhaust administrative remedies" which could easily cause your case to get thrown out. If they don't respond to your claim, that affirmative defense goes away, and also you might be able to go to the DOL with a complaint. Depending on the amount at stake, you should get a lawyer,.... but if you do, make sure you get one that is conversant in these rules and not some personal injury lawyer who has some down time.

Oh, both accounts were very much funded -- by my dad, in the case of the non-ERISA plan. (Non-ESOP-type 457(b)s set up through employers require employee contributions, often set up as a regular salary deduction; the employer, however, doesn't contribute, and merely facilitates the employee's ability to maximize tax deferral on regular high-salary compensation, frequently the only type of compensation these employees have.) To a surprising extent, in fact, which became clear when estate tax returns were filed. Even so, if I'm not directly a beneficiary, it'd be easy to spend more on lawyers than I'd see back, which is part of why pre-filing discovery matters here.

The only reported case discussing the valuation of a non-qualified and unfunded deferred compensation plan seems to be Douglas v. Douglas, 281 A.D.2d 709, 722 N.Y.S.2d 87 (2001), holding that a non-qualified and unfunded deferred compensation plan was capable of being valued for marital property purposes. Said the Court: [unfunded] “Next, plaintiff argues that his ability to collect from the unfunded, non-qualified retirement plan is too speculative to be valued as a marital asset. In support of his argument, plaintiff points out that since the plan is unfunded, payments are dependent upon the partnership remaining profitable and that to be eligible, one must be a partner for 10 years, be 50 years of age, not leave to compete with the partnership in another firm, and retire. Since plaintiff was not 50 years of age on the date that the action was commenced, his expert attempted no valuation of his interest, asserting that it was valueless. To the contrary, nonvested pensions are subject to equitable distribution (see, Burns v Burns, supra, at 376) and the uncertainty associated with the fulfillment of the conditions precedent to the receipt of such nonvested pensions does not present a significant impediment to a fair and realistic distribution of this type of asset (see, id., at 376). “Defendant's expert, on the other hand, noted that no partner had left plaintiff's firm to work for a competing firm in over 50 years and that historically the partnership was profitable enough to make payments called for by the plan to retired partners. Moreover, the expert assumed, and the record discloses no evidence to the contrary, that plaintiff would continue as a partner (in fact, he has more than 10 years as a partner in the firm and is now age 50), and he valued plaintiff's interest in the retirement plan at $412,700, $460,400 or $479,400, depending on whether plaintiff retired at age 50, 56 or 62. Given the uncontroverted evidence of valuation, Supreme Court did not abuse its discretion by accepting the valuation ascribed by defendant's expert (see, Ferraro v Ferraro, supra, at 598). Lastly, there is no merit to plaintiff's contention that the Majauskas formula (see, Majauskas v Majauskas, 61 NY2d 481) [Bangs/Pleasant in Maryland] should have been employed by Supreme Court since this formula need not be used where, as here, "a lump-sum payment discounted for present value" may be made to effectuate distribution of pension benefits (Mullin v Mullin, 187 AD2d 913, 915; see, Majauskas v Majauskas, supra).” See also an interesting case from Louisiana, Knobles v. Knobles, 236 So. 3d 726, 5th Cir. 2017, where the Louisiana Court of Appeals held that a “restoration plan” adopted long after the termination of the marriage was computed with reference to time during the marriage that the Participant was employed by the company in question. Said the Court: “Although Mark did not qualify for the Restoration Plan until his compensation from Chevron exceeded the applicable annual compensation limit, well after the community ceased to exist, the benefits Mark will receive under the Restoration Plan are calculated based in part on his credited service years accumulated during the existence of the community with Kay. Mark's years of employment during the marriage factored into his right to receive the increased accrued benefits of the Restoration Plan once it became effective and Mark met the requirements; thus, the community has an interest in the whole of the accrued benefit. See generally, De Montluzin v. Martinez, 94-1805 (La. App. 4 Cir. 2/23/95); 652 So.2d 71, 76-77, rehearing denied, (La. App. 4 Cir. 4/19/95). Because Mark's years during the marriage were used to determine his eligibility for participation in the Restoration Plan, we find that Kay is entitled to a right-to-share in one-half of the portion of the plan that is a community asset, despite the fact that a determinative value came into existence many years after the dissolution of the marriage. See, Sims, supra. Although the Consent Judgment between the parties anticipated the community property portion of the Restoration Plan as an undiscovered asset, Kay would have ultimately been entitled to that community asset through applicable jurisprudence and community property laws.” But see D.S. v. D.S., 217 Conn.App. 530, 289 A.3d 236 (2023) that reached the opposite conclusion as the Douglas case. In D.S. the decision was based on the opinion of the expert, Harrison, a CPA, that: "As an initial matter, Harrison noted, the provisions for retirement payments set forth in the partnership agreement are not funded and are not carried on the firm's books as a liability. Rather, retirement payments are disbursed from the firm's future earnings. Harrison found it significant that the provision for retirement payments is subject to termination or reduction at any time by a vote of the firm's partners. Harrison pointed out, as well, a provision in the partnership agreement reciting that the payments to a retiree could be adjusted by the firm's compensation committee and the concurrence of a certain number of partners on their determination that the payments are no longer fair to the remaining partners or the firm, or are otherwise inappropriate or inequitable to the former partner. Retirement payments also could be adjusted, deferred, or simply not paid, if the payments to retired partners exceed a certain percentage of the firm's income. In that event, the partnership agreement provides, payments to retirees may be deferred and not paid for up to five years and, if the payments cannot be made during the period of deferral, the obligation of the firm to make payments could be extinguished forever. Distinguishing the partnership retirement provisions from a qualified pension plan, Harrison characterized the defendant's potential to receive retirement payments from the firm as "the epitome of a mere expectancy." (Emphasis supplied.) What this mean is that even if the plan is unfunded, it can still be paid out as long as it's being paid out. Can a NQDC plan be enforce by a QDRO? Yes, if the Plan elects to do so. See the Foley and Lardner article at - https://www.foley.com/insights/publications/2018/09/nonqualified-retirement-plans-divorce-you-may-be/ But see 29 U.S. Code § 1051 that states: “This part shall apply to any employee benefit plan described in section 1003(a) of this title (and not exempted under section 1003(b) of this title) other than— (1)an employee welfare benefit plan; (2)a plan which is unfunded and is maintained by an employer primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees;” (Emphasis supplied.) And here is another twist: See Milligan v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 25-1385, — F.4th —-, 2026 WL 1041935 (4th Cir. Apr. 17, 2026), https://cases.justia.com/federal/appellate-courts/ca4/25-1385/25-1385-2026-04-17.pdf?ts=1776450633 where the Fourth Circuit affirmed a district court’s order granting summary judgment to Merrill Lynch, holding that the company’s WealthChoice Award program — an unfunded contingent cash incentive requiring eight years of continuous employment to vest — is an excepted bonus payment plan under 29 C.F.R. § 2510.3-2(c) and does not qualify as an ERISA-covered employee pension benefit plan. It might have been marital property had the employee remained on the job for the required eight years. But he did not and the “bonus” was lost. Is that dissipation? Let me know what happens.

One of the issue that rears its ugly head in top-hat plans is that the benefit are not funded, that is, unlike a defined contribution or a defined benefit plan, there is no cash in an account to pay the promised benefits - or is it unfunded? On the issue whether the 2012 SERP was "unfunded," the court notes that ERISA does not define this term, and the Fourth Circuit has not previously interpreted its meaning. However, in Demery v. Extebank Deferred Comp. Plan (B), 216 F.3d 283, 285 (2d Cir. 2000), the Second Circuit addressed whether a plan was unfunded where: 1) the employer took out life insurance policies on its employees to help pay for its obligations under the plan and 2) the proceeds of the policies were kept in an account entitled Deferred Compensation Liability Account. In Demery, the court first recited its previous holding that a plan is unfunded where "benefits thereunder will be paid solely from the general assets of the employer." Id. (citing Gallione v. Flaherty, 70 F.3d 724, 725 (2d Cir. 1995)). Then, the court adopted the following inquiry as instructive: "can the beneficiary establish, through the plan documents, a legal right any greater than that of an unsecured creditor to a specific set of funds from which the employer is, under the terms of the plan, obligated to pay the deferred compensation?" Id. (quoting Miller v. Heller, 915 F. Supp. 651 (S.D.N.Y. 1996)). Applying the above test, the court held that the plan was unfunded. Id. at 287. Of particular importance was the plan's express terms, which stated: [T]he Employer's obligation to make payments to any person under this Agreement is contractual and ... the parties do not intend that the amounts payable hereunder be held by the Employer in trust or as a segregated fund for the Employee.... The benefits provided under this Agreement shall be payable solely from the general assets of the Employer, and neither the Employee, the Beneficiary, nor any other person entitled to payments ... shall have any interest in any specific assets of the Employer by virtue of this Agreement. Employer's obligation under the Plan shall be that of an unfunded and unsecured promise of Employer to pay money in the future. Id. Based on those terms, the court concluded that the participants did not have a greater legal right to insurance proceeds than that of an unsecured creditor, thus the plan was unfunded as a matter of law. Id. Other circuits addressing this issue have reached similar conclusions. See Reliable Home Health Care, Inc. v. Union Cent. Ins. Co., 295 F.3d 505, 514 (5th Cir. 2002) (holding that a plan was unfunded for purposes of ERISA, even though plan benefits were technically funded through an insurance policy, since plan participants did not own the insurance policies, and their only right under the plan was to designate death beneficiaries); Belsky v. First Nat. Life Ins. Co., 818 F.2d 661, 663 (8th Cir. 1987) (holding that a plan was unfunded where an employer "obtained the insurance policy with the intention that it could be used in funding the Plan" but "the language of the Plan ... specifically avoids making a direct tie between the insurance policy and the Plan"). Here, as in Demery, Belsky, and Reliable Home Health Care, defendant HSM purchased life insurance policies on the recipients of an ERISA-governed plan, the 2012 SERP. The express terms of the 2012 SERP provided: The obligation of the Company to make payments hereunder shall constitute a liability of the Company to the Executive. Such payments shall be made from the general funds of the Company, and the Company shall not be required to establish or maintain any special or separate fund, or otherwise to segregate assets to assure that such payments shall be made, and the Executive shall not have any interest in any particular assets of the Company by reason of its obligations hereunder. Nothing contained in this Agreement shall create or be construed as creating a trust of any kind or any other fiduciary relationship between the Company and the Executive or any other person. To the extent that any person acquires a right to receive payment from the Company, such right shall not be greater than the right of an unsecured creditor of the Company. (Am. Comp. Ex. 1 (DE 6)) (emphasis added). Mirroring the plan's terms in Demery, the above language makes clear that 2012 SERP benefits are paid out of defendant HSM's general funds, and 2012 SERP recipients' rights to those funds are no greater than those of an unsecured creditor. Accordingly, under Demery, Belsky, and Reliable Home Health Care, the 2012 SERP was unfunded as a matter of law. Plaintiff argues the 2012 SERP is funded because defendant HSM used insurance proceeds to pay benefits under the 2012 SERP and terminated the 2012 SERP when those proceeds became insufficient. However, the fact that defendant HSM used the life insurance proceeds to pay his benefits under the 2012 SERP does not establish that the 2012 SERP was a "funded" plan. Indeed, the employers in Demery, Belsky, and Reliable Home Health Care also used insurance proceeds to pay benefits, yet the court in those cases found the plans to be "unfunded" because the plan recipients did not have a right to the proceeds that was greater than that of an unsecured creditor. Likewise, here, the terms of the plan unequivocally establish that a 2012 SERP recipient's right to proceeds is not greater than that of an unsecured creditor, and defendant HSM's decision to terminate the 2012 SERP did not augment this right. Finally, the fact that defendant HSM created individual Rabbi trusts to hold the proceeds of each insurance policy does not alter the 2012 SERP's status as unfunded, where the trust documents indicated: 1) the trust did not affect the 2012 SERP's status as unfunded, 2) beneficiaries shall have no preferred claim to the trust assets, 3) the trust assets will be subject to creditors' claims in the event of insolvency. See In re IT Group, Inc., 448 F.3d 661, 669-670 (3d Cir. 2006) (finding a plan to be unfunded where the related Rabbi trust documents specified that the trust "shall not affect the status of the Plans as unfunded plans" and that "Trust assets are subject to creditors' claims in the event of insolvency, and that such claims are on par with those of Plan participants"); see also U.S. Dep't of Labor Opinion Letter 91-16A (July 2, 1991) ("[A] plan will not fail to be `unfunded' ... solely because there is maintained in connection with such plan a `Rabbi trust.'"). See Colburn v. Hickory Springs, No. 5:19-CV-139-FL, United States District Court, E.D. North Carolina, Western Division (2020), see: - https://scholar.google.com/scholar_case?case=1317766776274361048&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:17102308171145443235:AAGBfm2dXJvPo0nUQKlDLqIPUBXxyXMitw More below cause they might truncate me.

Thank you for this. Yes, in this case, there is neither QDRO nor military involvement, and the interesting thing about the 457(b)/top-hat likelihood is the relief from ERISA Part 4. QDROs, while messy, work somewhat differently from this situation because of the family court's involvement and the recognized importance of the interests. But in that case, discovery during divorce will turn up information about annuity contracts so that the asset can be divided. What I'm hearing overall from you is that essentially a lawsuit would have to be filed and a judge willing to sign a subpoena in the absence of any concrete evidence beyond "the man had one known job, making it unlikely that both annuities are ERISA-covered to the extent that would trump state law regarding ex-spouse beneficiaries," which sounds a little fishing-expedition to me. It sounds like all the lawyer would be able to do is explain the situation and ask the annuity company nicely which of the plans was not 403(b) (or was 457(b)) and, for that one, whether there was a contingent beneficiary, and if so whether it was either the estate or me. If that failed, he could write to the ex-wife, who might turn out to be honest and/or want to avoid further trouble, though certainly any competent lawyer would advise her that she didn't have to respond and probably nothing would come of it -- except of course she'd know I was out here in the world thinking what I'm thinking. And if the answer to both was "we're not telling you," the path to application of the law and remedy would probably end there. We could try to file a lawsuit and get a judge to issue a subpoena for the info, but without certain knowledge of which annuity was non-relevant-ERISA (assuming one was) and that I'm beneficiary, the discovery costs could very quickly exceed anything reasonable.

for Associated Pension Consultants, a Prime Pensions Company (Remote / Chico CA)View the full text of this job opportunity

for Associated Pension Consultants, a Prime Pensions Company (Remote / Chico CA / Sacramento CA)View the full text of this job opportunity

for Associated Pension Consultants, a Prime Pensions Company (Remote / Chico CA / Sacramento CA)View the full text of this job opportunity

for Nova 401(k) Associates (Remote)View the full text of this job opportunity

The focus of this excerpt relates only to ERISA qualified plans and was designed to address a potential Alternate Payee seeking to enforce a QDRO. But the definition of "beneficiary" is the same in the scenario you present, that is a employer sponsor of a health and welfare benefit plan. If you have the right to sue then you have the right to subpoena records. That does not, however, mean that you have to right to ask for records before suit has been filed and before a court has determined that you are in fact a "beneficiary" with standing to obtain records. As a practical matter the situation is likely the same with respect to a non-ERISA Plan. There are many plans that will not provide records without a subpoena signed by a judge. A subpoena signed by the Clerk of the Court will not do. The US Military will not provide such records unless the subpoena is signed by a Federal judge. See https://www.dfas.mil/foia/Subpoenas-Court-Orders/Subpoena-and-Court-Order-State/ and click on "Other Requestors". But in both cases you cannot get a subpoena without having a case pending before that court. In the case of the Military the workarounds are : (i) voluntary compliance by the Member; (ii) having the court hold the Member in contempt and imposing sanctions until the Member provides the requested information or authorizes the release of the information and documents to opposing counsel. A third option is to ask the court to assume that. since the Member will not cooperate, 100% of the Member's benefits are marital property and that the Former Spouse is entitled to 100% of such benefits --- so now the burden shifts to the Member to prove otherwise. A plaintiff has standing to bring a claim under ERISA if he/she is a plan participant, beneficiary, or fiduciary. Caples v. U.S. Foodservice, Inc., 444 F. App'x 49, 52 (5th Cir. 2011) (citing 29 U.S.C. § 1132(a)); Cobb, 461 F.3d at 634; Coleman v. Champion Int'l Corp., 992 F.2d 530, 533 (5th Cir. 1993). A "participant" under ERISA is an "employee or former employee" of an employer offering an employee benefit plan. 29 U.S.C. § 1002(7). A "fiduciary" is someone who (1) exercises "discretionary authority . . . respecting management of such plan or . . . disposition of its assets," (2) "renders investment advice for . . . compensation . . . with respect to any moneys or other property of such plan," or (3) "has any discretionary authority or . . . responsibility in the administration of such plan," Id. § 1002(21)(A). A "beneficiary" is defined as "a person designated by a participant, or by the terms of an employee benefit plan, who is or may become entitled to a benefit thereunder." Id. § 1002(8). In order to qualify as a beneficiary, an individual must have "a reasonable or colorable claim to benefits." Crawford v. Roane, 53 F.3d 750, 754 (6th Cir. 1995); see also Cobb, 461 F.3d at 635-36 (holding that to have standing as a beneficiary under ERISA, a plaintiff must show both that he or she was designated as such by the participant or terms of the plan, and that he or she has a colorable entitlement to benefits under the plan). In Parsons v. Board of Trustees of the Boilermaker-Blacksmith National Pension Trust, Civil Action No. 2:20-cv-00132, USDC (S.D. WV 2020), 487 F.Supp.3d 489 (2020), that you can find at - https://scholar.google.com/scholar_case?case=12166270204191846086&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:14880692104701005079:AAGBfm2qi1_JaXLJvydb4f3quYTnTlLkbA, the Court set forth a good summary of the rights of potential Alternate Payees to sue a pension plan for benefits claimed to be payable by reason of a QDRO. At issue in this case was whether or not the language of the QDRO was broad enough to include survivor annuity benefits. Said the Court - “ERISA was enacted to protect employees and their beneficiaries by ensuring the proper administration of employee benefit plans. Boggs v. Boggs, 520 U.S. 833, 839 (1997). The Retirement Equity Act of 1984 (REA) amended ERISA with respect to surviving spouses in two important ways. REA requires pension plans to provide automatic benefits to surviving spouses. Id. at 843; 29 U.S.C. § 1055(a). Additionally, while ERISA generally prohibits assignment or alienation of benefits under a pension plan, REA provides for a Qualified Domestic Relation Order (QDRO) exception wherein a former spouse or children of a previous marriage may be designated as an alternate payee and thereby "receive all or a portion of the benefits payable with respect to a participant under the plan." 29 U.S.C. § 1056(d)(3)(B)(i)(l). “A domestic relations order is any judgment, decree, or property settlement that "relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child, or other dependent of a participant" and "is made pursuant to a State domestic relations law." Id. at § 1056(d)(3)(B)(ii). However, in order for a domestic relations order to qualify as a QDRO, it must meet the following requirements: (1) the order must specify the name and mailing address of the alternate payee and the affected plan participant, (2) the amount or percentage of the participant's benefits to be paid or the means by which that amount will be determined, (3) the number of payments or time period to which the order applies, and (4) each plan to which the order applies. Id. at § 1056(d)(3)(C). Moreover, a QDRO cannot (1) require the plan to provide any type of benefit not otherwise provided, (2) require the plan to provide increased benefits, or (3) require benefits to be paid to an alternate payee which must be paid to another alternate payee under the QDRO. Id. at § 1056(d)(3)(D). “A plan administrator generally has discretion to determine whether a domestic relations order constitutes a QDRO, but such determinations are reviewable by courts. Dorn v. Int'l Bhd. of Elec. Workers, 211 F.3d 938, 946 (5th Cir. 2000). In determining whether a domestic relations order is a QDRO, courts have required substantial compliance with the drafting requirements. Hamilton v. Washington State Plumbing & Pipefitting Indus. Pension Plan, 433 F.3d 1091, 1097 (9th Cir. 2006). The "pivotal question is whether the dissolution order `clearly contains the information specified in the statute that a plan administrator would need to make an informed decision.'" Id. (quoting Stewart v. Thorpe Holding Co. Profit Sharing Plan, 207 F.3d 1143, 1154 (9th Cir. 2000)). “If a domestic relations order qualifies as a QDRO, then "any spouse, former spouse, child, or other dependent of a participant" that is designated as an alternate payee shall be considered a "beneficiary under the plan." Id. at §§ 1056(d)(3)(J)-(K). Thereby, a former spouse can obtain a secured interest in benefits merely by obtaining a QDRO. Id. at 1056(d)(3)(A); Metro. Life Ins. Co. v. Pettit, 164 F.3d 857, 864 (4th Cir. 1998); Hopkins v. AT&T Global Info. Solutions Co., 105 F.3d 153, 157 (4th Cir. 1997). “As noted above, ERISA requires pension plans to provide automatic survivor benefits to retiring participants. Dorn, 211 F.3d at 943. A Qualified Q Annuity (QJ&SA) is the principal mechanism for providing such survivor benefits. Id. "[A] QJ&SA comprises two separate and distinct benefits: (1) An annuity for the life of the participant, and (2) a succeeding annuity for the life of the surviving spouse (if there is one) of not less than 50% of the participant annuity." Id. Generally, in order for one to qualify as a surviving spouse in the context of a QJ&SA they must be married to the participant "(1) during the applicable election period, (2) on the annuity starting date, or (3) at [the participant's] death." Id. at 947 (internal quotation marks omitted). “Former spouses, however, can also receive surviving spouse benefits under certain circumstances. "To the extent provided in any qualified domestic relations order ... the former spouse of a participant shall be treated as a surviving spouse of such participant." 29 U.S.C. § 1056(d)(3)(F)(i) (emphasis added). Federal courts have held that, in order for a former spouse to be entitled to surviving spouse rights, "any assignment of surviving spouse rights in a QDRO must be explicit, rather than implicit." Hamilton, 433 F.3d at 1099; Hopkins, 105 F.3d at 155; Dorn, 211 F.3d at 947. Moreover, where a QDRO is silent as to surviving spouse rights, a designation of alternate payee or beneficiary does not elevate one to the status of a surviving spouse entitled to a survivor annuity under a QJ&SA. Dorn, 211 F.3d at 947. “The detailed requirements for drafting a QDRO have been characterized as a "drafting morass for the lawyer." Hamilton, 433 F.3d at 1096. The Court recognizes "the concern expressed by courts and commentators that the failure of domestic relations lawyers to `navigate the treacherous shoals' of ERISA may harm potential beneficiaries." Id. (quoting Metro. Life Ins. Co. v. Wheaton, 42 F.3d 1080 (7th Cir. 1994)). Nevertheless, "Congress required that QDROs be specific and clear because it was concerned with reducing the expense to plan providers and protecting them from suits for making improper payments." Id. at 1096-97 (quoting In re Gendreau, 122 F.3d 815, 817-18 (9th Cir. 1997)) (internal quotation marks omitted). "As an initial matter, the Plaintiff argues that the Court should not consider the QDRO or the Plan Document, because review of such documents is premature at the motion to dismiss stage and would instead convert this motion into one for summary judgment. This argument is without merit. For purposes of a motion to dismiss, "a court may consider official public records, documents central to the plaintiff's claim, and documents sufficiently referred to in the complaint so long as the authenticity of these documents is not disputed." Witthohn v. Fed. Ins. Co., 164 Fed. Appx. 395, 396 (4th Cir. 2006). A court may also consider pension plan documents for a motion to dismiss when a plaintiff relies on such documents in the complaint. Stewart v. Pension Trust of Bethlehem Steel Corp., 12 Fed. Appx. 174, 176 (4th Cir. 2001). Both the QDRO and the Plan Document fall under this umbrella and may be considered in light of the motion to dismiss.” ERISA § 404(a)(1) sets forth the primary duties of an ERISA fiduciary, providing that a fiduciary must: (1) act solely in the interest of plan participants and beneficiaries for the exclusive purpose of providing benefits to participants and their beneficiaries; (2) act with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent person acting in like capacity and familiar with such matters would use in the conduct of an enterprise of like character and with like aims; (3) diversify the investments of a plan so as to minimize the risk of large losses; and (4) act in accordance with the documents and instruments governing the plan insofar as they are consistent with the provisions of Titles I and IV of ERISA. 29 U.S.C. § 1104. A fiduciary may be personally liable for, and removed as a fiduciary as a result of, any breaches of the responsibilities, obligations, and duties imposed by the statute while acting as a fiduciary under ERISA. ERISA § 409. 29 U.S.C. § 1109. Generally, to state a claim for breach of fiduciary duty under ERISA, a plaintiff must allege that: (1) the defendant was a fiduciary of an ERISA plan who, (2) acting within his capacity as a fiduciary, (3) engaged in conduct constituting a breach of his fiduciary duty. A good case discussing breach of fiduciary duty is Volz v. General Motors, Civil Action No. 22-cv-3471, United States District Court, E.D. Pennsylvania (October 5, 2023)- https://scholar.google.com/scholar_case?case=10217039916663686201&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:17102308171145443235:AFWwaea94w7XgMVkZLP-Q4RdIOLK&html=&pos=1&folt=kw See also, 29 U.S.C. § 1104(a)(1) (duty of loyalty) and 29 U.S.C. § 1104(a)(1)(B) (duty of prudence). See Barker v. Am. Mobil Power Corp., 64 F.3d 1397, 1403 (9th Cir. 1995) (ERISA's duty to act in the best interests of the plan participants and beneficiaries includes a duty to investigate suspicions that one has concerning the plan); see also Patterson v. Reliance Standard Life Ins. Co., 986 F. Supp. 2d 1140, 1150 (C.D. Cal. 2013). See cases citing Barker at - https://scholar.google.com/scholar?hl=en&as_sdt=20000006&q="Barker+v.+Am.+Mobil+Power+Corp."+"64+F.3d+1397"+"duty"+"investigate"+'"fiduciary"&btnG= Good luck, David

Hello - A question about release of information about a decedent's annuity contract. (I'm not a benefits pro, and appreciate your time.) My late father had two annuities from the same company, one of them probably fully ERISA-covered from his employment, the other probably either his employer's top-hat plan or, less likely, self-purchased outside employment. Both had his ex-wife listed as beneficiary and funds have likely been distributed already to her. The state in which he lived directs plan administrators to regard ex-spouses as deceased unless otherwise specified. She's probably entitled to one, but not both, annuities under the combination of ERISA and state law. Remedy would be to collect from her directly. Problem: I have neither contract in hand and am not executor, trustee, or heir; his trust is the beneficiary of his will, and I'm merely a trust beneficiary. Without knowledge that there are assets to recover for the estate, the executor-trustee will not press the plan administrator for release of contract information; I have no standing to force him to. If I knew that at least one of the annuities was definitely not ERISA-covered regarding fiduciary duties, and that either my father's estate or I was properly a beneficiary, the path to recovery would be relatively clear. However, in the absence of contracts and an executor-trustee willing to request them, I don't see any very compelling path. All I have is a supposition that only one annuity is ERISA-covered, though I don't know which, and another that I'm in some form a contingent beneficiary. As far as I can make out, though, I have no right to the contracts or info about whether (a) either plan is in fact non-ERISA/457(b), and if so which; (b) whether contingent beneficiaries exist for it; (c) if so, whether I'm named. An annuity company rep has told me that a subpoena driven by my lawyer would probably prompt release of information from their legal department, but I have a feeling this is probably incorrect. If, as a plan administrator, you'd already disbursed remaining funds to the named beneficiary, then received a subpoena to release such plan and contingent-beneficiary info to the attorney of a non-executor, would you be able to release it, and if so, why would this be allowed? Again, thanks very much for your time.

for Slavic401k (Remote / AL / AZ / FL / GA / MI / MS / NC / NE / OH / OK / TN / TX)View the full text of this job opportunity

for Slavic401k (Remote / Boca Raton FL / AL / AZ / GA / MI / MS / NC / NE / OH / OK / TN / TX)View the full text of this job opportunity

for Teachers Retirement Association (Saint Paul MN / Hybrid)View the full text of this job opportunity

Thank you for sharing a further reasoning. Among other issues, whether a complaint plausibly asserts a claim on which relief could be granted might turn on whether the complaint alleges facts from which a judge could find that the valuation expert was not independent regarding the person who might have engaged in a prohibited transaction. It might be disloyal or imprudent for a valuation-reviewing fiduciary if that fiduciary knows or, in the exercise of prudent diligence, would know that the valuation expert is not independent.

I think it includes both. In the enrolled text, the phrase 'good faith reliance' appears in the adequate consideration definition: an ESOP fiduciary may rely in good faith on an independent expert’s valuation using RR 59-60 principles. The next clause expressly states that this rule does “[not] modify any fiduciary obligation under ERISA 404." So, on its face, the law is intended to preserve both the exclusive-purpose duty in 404(a)(1)(A) and the prudence duty in 404(a)(1)(B). I think "plausible method" perhaps understates what the text is trying to do (I don't profess to know what Congress is trying to do). Here, an ESOP fiduciary will be able to rely in good faith on an independent appraiser’s valuation when the appraiser uses 59-60 principles and methodologies. That's more than saying 59-60 is one acceptable reference--but it addresses the fiduciary’s reliance on the resulting valuation. I don't think it deems every valuation produced under the 59-60 "framework" to be adequate consideration, as it expressly preserves 404 duties. Also, you hit the central limitation of the bill on its head because, said another way, even a sound framework cannot cure unsound inputs. I think the law, if enacted, would authorize good-faith reliance on an independent valuation prepared under 59-60, but the fiduciary must still have a prudent basis for relying on that particular valuation, which includes its material information and assumptions (its "inputs"). It wouldn't make the appraisal self-validating.

Might the plan sponsor have set a measure of 83 hours in a month because a health or other welfare plan for the employees looks to that measure for some purpose?

Perhaps the legislation puts Congress’s imprimatur on identifying the IRS’s Revenue Ruling as a plausible method for estimating the hypothetical fair market value of an asset that has no “generally recognized” market. But the method is vulnerable to the information assumed. Does “good faith” require only exclusive-purpose loyalty? Or does that loyalty require that the fiduciary act with ERISA § 404(a)(1)(B) prudence?

To me, the Act does not modify a fiduciary's obligations under ERISA Section 404, including the duties of prudence and loyalty. An ESOP trustee could not simply obtain an appraisal and consider the fiduciary inquiry complete. The trustee would still need a sound process for evaluating the transaction and the supporting valuation, including projections, assumptions, financing terms and other relevant information. The Act purports to protect good-faith reliance on an independent valuation—not blind reliance on one.

for Trucker Huss, APC (Remote)View the full text of this job opportunity

Sounds awful. Add into the mix the LTPT rules and someone is going to need a week of training to administer eligibility. Simplify! Simplify! Simplify! I thought that was Ben Franklin but I googled it and it was Henry David Thoreau.

For what it's worth, I've had several DOL folks close investigations where they approve (or, maybe more accurately, tell me they do not object to) this approach. In those situations, we've (1) run an allocation with all the correct amounts, (2) removed any terminated participant who would get an allocation below the administrative distribution fee, and (3) re-allocated the amount from (2) among the remaining employees, active and terminated (i.e., not simply forfeit the amounts excluded in (2)). I don't know whether the IRS would accept the same logic for plan-qualification purposes, but I don't think it's a stretch.

Agreed on the 2025 piece :). But if no one got capped at $31,000 in 2025 then what I said above is still true!

Since Super Catch Ups first appear in the Secure 2.0 amendment, your plan is bound by how it was operationally administered for 2025 and up to now in 2026. If you did not allow Super Catch Ups in 2025 you would not be allowing them in 2026 and have or will adopt that amendment. If you did allow them in 2025 and want to stop them now, you would need to provide a 30 day notice and modify your Secure 2.0 Amendment to allow them for 2025 and most of 2026 before you did not allow them.