August 2002

Post-Mortem QDROs

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 (4^th Cir. 1997); Rivers v. Central and South West Corp., 186 F.3d 681 (5^th 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 (2000).

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 (9^th 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 participant’s death, but it can be entered nunc pro tunc to the vesting of the obligation. Accord In re Gendreau, 122 F.3d 815 (9^th 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 husband’s 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.