Survivor Benefit from ERISA plan for Ex spouse

1) All references are to Ohio jurisdiction besides ERISA;

2) Divorce of 20 years was finalized in 2007 with each waiving rights to each others pension;survivor rights were not stipulated in decree;

3) Ex husband passed in July 2018 with exspouse naming me as beneficiary for all benefits including 401k, pension, etc;

4) Former employer refuses to provide application for survivor benefits stating that since ex was not married at time of death, there are no survivor benefits to be paid and the plan does not allow for payments to dependent children (two children-currently 15 and 21);

5) In December 2018,  I was appointed the administrator of estate in order to resolve estate on behalf of children and subsequently requested copy of employment file.  Employer responded with an incomplete file and has failed to respond to subsequent requests;

6) It is my understanding that if our domestic court judge approved a QDRO designating me or children as  estate designated survivor then former employer would be required to honor QDRO.

However, I do not know how to proceed on unraveling and pursue a claim on behalf of myself or estate.  I know that I need an attorney but I dont know if I need an ERISA, domestic court or probate attorney or all of the above.

Any guidance would be appreciated.

Thank you

Survivor

survivoroh, depending on type of plan, e.g. defined benefit pension, there may not be any survivor benefits. Or their could be. You will really need to hire a lawyer competent in pension matters. Anything anyone else tells you here may be helpful speculation, but your issues are fact- and document-specific.

Mr. Bailey

I concur, however, without having the complete employment file, a comprehensive legal review is not possible. Thus far, the employer has only provided a partial file. If you know of anyone in Ohio, near Dayton, I would appreciate a referral.

Respectfully

Survivor

1) All references are to Ohio jurisdiction besides ERISA; WE DON'T TALK ABOUT SPOUSES OR EX SPOUSES.  THE PROPER TERMS TERMS ARE PARTICIPANT AND ALTERNATE PAYEE.  

2) Divorce of 20 years was finalized in 2007 with each waiving rights to each others pension;survivor rights were not stipulated in decree;  SURVIVOR BENEFITS UNDER ERISA DO NOT SURVIVE THE DIVORCE UNLESS A QDRO IS SUBMITTED TO THE PLAN ADMINISTRATOR.  A QDRO WILL NOT BE SIGNED BY THE COURT UNLESS IT IS AUTHORIZED BY THE AGREEMENT OF THE PARTIES OR WAS ORDERED BY THE COURT IN THE DECREE OF DIVORCE.  IF BOTH PARTIES WAIVED CLAIMS, THEN THERE ARE NO SURVIVOR BENEFITS TO BE AWARDED.  IF SURVIVOR BENEFITS ARE NOT ADDRESSED IN THE DIVORCE DECREE, THEN THEY ARE NOT AWARDED.  

3) Ex husband passed in July 2018 with exspouse naming me as beneficiary for all benefits including 401k, pension, etc;  WHO IS EX SPOUSE?  THE DEAD PARTICIPANT?  WHERE ARE YOU NAMED AS BENEFICIARY?  IN THE PLAN BENEFICIARY DESIGNATION?  WAS THE PARTICIPANT RETIRED AT THE TIME OF HIS DEATH?  WAS HIS RETIREMENT ANNUITY BEING REDUCED BY THE ACTUARIAL COST OF PROVIDING A SURVIVOR ANNUITY?  

THIS IS NOT AN UNCOMMON EVENT, BUT THE RULE IS THE SAME - A PARTICIPANT FAILS TO CHANGE HIS/HER BENEFICIARY.  IF YOU WERE NOT AWARDED THE SURVIVOR ANNUITY YOU DON'T GET IT.  IF HE DIED BEFORE RETIREMENT, THEN THERE IS NO POST RETIREMENT SURVIVOR ANNUITY, ONLY PRE-RETIREMENT BENEFITS THAT ARE USUALLY RATHER MEAGER.  

4) Former employer refuses to provide application for survivor benefits stating that since ex was not married at time of death, there are no survivor benefits to be paid and the plan does not allow for payments to dependent children (two children-currently 15 and 21);  SOUNDS RIGHT. 

5) In December 2018,  I was appointed the administrator of estate in order to resolve estate on behalf of children and subsequently requested copy of employment file.  Employer responded with an incomplete file and has failed to respond to subsequent requests;

6) It is my understanding that if our domestic court judge approved a QDRO designating me or children as  estate designated survivor then former employer would be required to honor QDRO. "IF" IS A BIG WORD.  ON WHAT BASIS WOULD THE COURT APPROVE THE QDRO LONG AFTER THE DIVORCE IF BOTH PARTIES WAIVED THEIR RIGHTS?  QDROS DON'T PROVIDE SURVIVOR BENEFITS TO CHILDREN.  THEY EXIST AND ARE DESIGNED TO TRANSFER PENSION BENEFITS  (RETIREMENT AND SURVIVOR ANNUITY BENEFITS) BETWEEN SPOUSES IN CONNECTION WITH DIVORCE PROCEEDING. IF THERE ARE BENEFITS PAYABLE TO THE CHILDREN, THEN THAT WOULD BE UNDER ANOTHER SECTION OF THE PLAN HAVING NOTHING DO TO WITH QDROS.   

However, I do not know how to proceed on unraveling and pursue a claim on behalf of myself or estate.  I know that I need an attorney but I dont know if I need an ERISA, domestic court or probate attorney or all of the above.  YOU NEED TO FIND A LAWYER THAT UNDERSTANDS ERISA.  THE FIRST THING YOU NEED IS A COPY OF THE PLAN.  DON'T RELY ON THE FACT THAT THE PARTICIPANT FAILED TO REMOVE YOU AS THE BENEFICIARY OF THE SURVIVOR ANNUITY. 

ALL OF THE ABOVE WILL NOT APPLY TO THE 401(K).  IF THE PARTICIPANT NEVER REMOVED YOU AS BENEFICIARY OF THE 401(K) YOU MAY BE ENTITLED TO RECEIVE THE ACCOUNT BALANCE.  OR IT MAY PASS TO THE PARTICIPANT'S ESTATE AND PASS TO HIS TESTAMENTARY BENEFICIARIES UNDER HIS WILL, OR, IN THE ABSENCE OF A WILL, ACCORDING TO THE LAWS OF INTESTACY TO HIS STATUTORY HEIRS.   IT SHOULD ALL BE COVERED IN THE PLAN DOCUMENTS.      

Any guidance would be appreciated.

Thank you

Survivor