Qualified Domestic Relations Orders and Pension Evaluations
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Can a Qualified Domestic Relations Order be filed by a Divorced Spouse after the death of her Husband so that she may obtain the money in his (decedents) 401(k) Plan?

Consider This:

  • The parties divorce and it is agreed that the Wife is entitled to $500,000.00 from her former (now dead) Husband's 401(k) Plan.
  • This award to the Wife is made part of the parties Marital Settlement Agreement.
  • After the divorce, the Husband remarries
  • Shortly after Husband's remarriage he is killed in an accident.
  • After the death of the Husband, his ex-Wife filed a Domestic Relations Order with the Husband's employer claiming her divorce award.
  • After the death of the Husband, his current wife, claimed as his "Surviving Spouse", the $500,000.00.

Who gets the money????

Both Federal Regulation and common law are supportive of awarding to his ex-Wife this lump sum benefit. Death does not defeat a divorce award to an ex-Wife.

Key Point.
A Qualified Domestic Relations Order filed after the death of a Wife need not fail because your ex-Husband is now dead (if he remarried this is much more difficult to achieve).

A Qualified Domestic Relations Order may be filed after his death by a device termed:

"Nunc pro tunc" or "Posthumous" QDRO.

The key to the ex-Wife's success is the content of your Marital Settlement Agreement. If your agreement contained a cash award from your now deceased ex-husband's 401(k) or similar Plan, then the death of your ex-husband does not extinguish your divorce award.

As an ex-wife you must obtain a "Nunc pro tunc" Domestic Relations Order. When this type of Order is properly prepared, you can get your award, even if:
There is a subsequent spouse
The death of your husband took place more than one year ago.