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ROSS v. ROSS
RECENT FEDERAL CASES - DE FACTO REVERSAL

The Ross decision came down in January 1998. In reaching its decision the Ross court opined as follows:

Without a doubt, it is more equitable to satisfy the obvious intent of the PSA agreement and grant Ross the survivor benefits of all of Mr. Ross's pensions pursuant to the language in the PSA that Ross shall be deemed the surviving spouse for any survivor annuity (emphasis mine). It is clear, however, that survivorship benefits are governed by ERISA unless a valid QDRO exists or the PSA satisfies the QDRO prerequisites under the REA. The statute specifically provides that where a domestic relations order which is not qualified exists, federal common law preempts state law… The unfortunate result is that equity will not prevail…

Here, no QDRO existed at the time of Mr. Ross's death. No federal case has allowed a QDRO to be entered after a participant's death… (emphasis mine)

From the above it is clear where the sympathies of the Ross court lie. Unfortunately, the court did not believe federal law supported their sympathies.

One of the unfortunate legacies of Ross is the heightened pressure on attorneys to file a Domestic Relations Order as soon as possible. This pressure is exacerbated by the Ross view that an Order filed subsequent to divorce may be subject to rejection. It is our view that a Domestic Relations Order should be timely filed with a Plan Administrator. But "timely" is not well defined. Prudent attorneys will agree that the death of a titled-spouse subsequent to divorce, but, prior to entry of a Domestic Relations Order can diminish and perhaps extinguish the rights of an Alternate Payee. Attorney apprehension increased as a result of the Ross position regarding Posthumous Orders. This Practice Aid questions the current status of Ross, in light of a significant body of post-Ross decisions (federal) dealing with survivor benefits and a Posthumous Order.

The current status of Ross.
Subsequent to the Ross decision, it is Troyan, Inc.'s position that a body of federal case law has provided a foundation for the reversal of Ross. The below cited cases clearly establish that the Ross court's assumption that no federal case has allowed a QDRO to be entered after a participant's death, is not currently supported by the facts. To buttress our argument that Ross does not represent the current federal view, readers may reference the following decisions:

Galinski v. Ford Motor, U.S. Dist Ct., 421 F. Supp. 2d 1015, March 17, 2006

Hogan v. Raytheon, Co., Ct App 8th Cir, 9/12/02 Filed

IBM v. Price, US Dist Ct VT (2nd Cir). 349 F. Supp. 2d 854; 12/13/04 Decided

Natl. City v. Ferrell; 2005 U.S. Dist. LEXIS 36149,8/31/05, U.S. Dist Ct. in 4th Cir.

Patton v. Denver Post; Ct. App.10th Cir. 4/23/03, 326 F.3d 1148

Tise, U.S. Ct. of App. 10th Cir., 255 F.3d 661, December 6, 2000

Additionally, the Price decision clearly distinguished one of the key Ross supports, Samaroo (U.S. Ct. of App. 3rd Cir., 193 F.3d 185, September 24, 1999). Further, note that Samaroo preceded all of the above cited federal decisions. This is not to imply that Samaroo does not remain relevant within a limited fact pattern. Recall, the Property Settlement Agreement in Samaroo, did not contain survivor language. The above referenced cases deal with an award of survivor benefits to a Former Spouse and the failure to file a Domestic Relations Order in what a Plan Administrator deemed a "timely" fashion. We maintain that when your fact pattern is not a mirror of Samaroo, the opportunity for qualification of a Posthumous Order is enhanced. Central to our argument is the requirement that your fact pattern mirror or be sufficiently close to the facts of any of the above cited federal cases.

Regarding New Jersey Qualified Domestic Relations Orders, Troyan, Inc. is of the view that a Posthumous QDRO or Nunc pro tunc QDRO prepared in New Jersey and based on the above cited federal decisions need not be subject to the same fate as Ross. Toward that end Troyan, Inc. will provide support to attorneys confronting a Ross issue.

Troyan, Inc. is available to conduct New Jersey seminars on the impact of Files; 428 F.3d 478 and Ross based on the current status of Federal Law. The level of ours seminars is determined by your stated requirements.