Laura W. Morgan
In 1984, Congress amended ERISA by the Retirement Equity
Act of 1984 to provide for state court assignments of ERISA
covered plan benefits to former spouses and dependents. In
order for the state court to assign pension plan proceeds,
the pension plan administrator must be presented with a Qualified
Domestic Relations Order (QDRO).
Some courts have held that the court is without jurisdiction
to enter a QDRO after the death of a party. These cases have
held that when one party dies, the statutory rights of the
named beneficiary vest, and there is no right to obtain a
QDRO. Hopkins v. AT&T Global Information Solutions
Co., 105 F.2d 153 (4th Cir. 1997); Rivers
v. Central and South West Corp., 186 F.3d 681 (5th
Cir. 1999); Ross v. Ross, 308 N.J. Super. 132, 705
A.23d 784 (App. Div. 1998). This is also true when the plan
participant has not remarried. Samaroo v. Samaroo,
193 F.2d 185 (3d Cir. 1999), cert. denied, 120 S. Ct. 1573
Other cases have held that a QDRO can be entered after death.
Payne v. GM/UAW Pension Plan, 1996 WL 943424 (E.D.
Mich. 1996). The most recent Circuit Court case to address
this issue is Trustees of the Directors Guild of America-Producer
Pension Benefits Plans v. Tise, 234 F.3d 415 (9th
Cir. 2000). In that case, the mother had been trying to get
a QDRO to enforce a support order when the father died. The
court held that a QDRO renders enforceable an already existing
obligation. There is no reason, therefore, that it must be
obtained before the plan participants death, but it
can be entered nunc pro tunc to the vesting of the obligation.
Accord In re Gendreau, 122 F.3d 815 (9th
Cir. 1997), cert. den. 523 U.S. 1005 (1998).
The district courts continue to split on the issue. In Patton
v. Denver Post Corporation, 179 F. Supp. 2d 1232 (D.
Colo. 2002), the court held that a trial court can enter a
QDRO nunc pro tunc after the husbands death. On the
other hand, in Davenport v. Estate of Davenport,
146 F. Supp. 2d 770 (M.D. N.C. 2001), the court held that
a state court was precluded from issuing a post-death QDRO
in favor of the children. The deciding factor in that case
was that the husband had remarried.
These cases point out the need to obtain a QDRO in a timely
fashion, before anyone dies.