THE EFFECT OF DEATH AND REMARRIAGE ON STATE COURT ORDERS, DIVIDING SURVIVOR BENEFITS
© 2000 National Legal Research Group, Inc.
The division of retirement benefits is an area of law loaded with traps for the unwary practitioner. As most practitioners know, the great majority of all pension plans are regulated by the Employee Retirement Income Security Act (ERISA). ERISA provides that retirement benefits cannot be transferred from the owner to a spouse unless the order making the transfer qualifies as a qualified domestic relations order (QDRO). 29 U.S.C. 1056 (Supp. 2000). Thus, to divide a pension plan, counsel must draft a QDRO, convincing a state court to enter it, and convincing the plan administrator to recognize it. This process is fraught with peril for even the experienced practitioner.
One of the more arcane malpractice traps established by ERISA: the question of whether a QDRO dividing survivor benefits can be entered after the owning spouse has remarried or died. This trap arises in two different fact scenarios. In the first scenario, survivor benefits are divided by state court order, but the owning spouse remarries or dies before a QDRO is entered. Sometimes the problem results from a sudden unexpected event; more commonly, the problem arises because the drafting attorney delayed unreasonably long before submitting a draft QDRO to a state court judge. In the second scenario, survivor benefits are not initially divided, but a state court divides them after the fact under a theory of partition or mutual mistake. See generally Brett R. Turner, Equitable Distribution of Property 9.06 (2d ed. 1994 & Supp. 2000). In the meantime, however, the owning spouse has remarried or died.
In both scenarios, the state court normally enters the draft QDRO under state law. The plan administrator then refuses to qualify the order and files an action in federal court for a declaration that ERISA prevents enforcement of the state court order. These federal actions have succeeded at least as often as they have failed. It is essential, therefore, that domestic relations practitioners understand the nature of the risk that remarriage or death will prevent enforcement of a QDRO, and that they take basic steps to prevent that risk from harming their clients. If these steps are not taken, the result may be not only an unhappy client but also a malpractice action.
II. ERISA: A BRIEF OVERVIEW
Most practitioners are familiar with the basic rule that a QDRO is needed to make an enforceable conveyance of retirement benefits. A domestic relations order (DRO) is an order entered in state domestic relations proceedings which orders the transfer of retirement or survivor benefits from one spouse to the other. A DRO becomes a QDRO when the plan administrator determines that it meets a series of specific requirements:
1. The order must be one which "creates or recognizes the existence of an alternate payee's right to . . . receive all or a portion of the benefits" payable to the owner. 29 U.S.C. 1056(d)(3)(B)(i). This requirement is rarely a problem. 2. The order must specify the name and last known mailing address of each participant and each alternate payee; the amount or percentage to be received by each alternate payee (or the manner in which the amount or percentage should be determined); the number of payments or periods for which the order is effective; and the precise retirement plan or plans to which the order applies. 29 U.S.C. 1056(d)(3)(C). These requirements are all mostly a matter of ensuring that the right information is included in the order.
3. The order may not "require a plan to provide any type or form of benefit, or any option, not otherwise provided under the plan," may not "require the plan to provide increased benefits (determined on the basis of actuarial value)," and may not require the plan to pay to one alternate payee benefits already payable to another. 29 U.S.C. 1056(d)(3)(D). This requirement is the focus of most of the contested cases. Simply put, state court orders can divide existing benefits, but they cannot create new benefits which are not available to the owning spouse under the terms of the plan. Orders which violate this requirement cannot be qualified as QDROs and are therefore not enforceable.
In the specific context of remarriage or death, the QDRO provisions must be considered in light of another key provision of ERISA. ERISA provides for enforcement of state court orders which benefit a former spouse, but it also provides a series of substantive rules of federal law to protect current spouses. In particular, under 29 U.S.C. 1055 (Supp. 2000), the owner's current spouse has a substantive right to receive a survivor annuity upon the owner's death. This annuity can be waived, but only with the full consent of the second spouse.
Under 1055, when the owning spouse remarries, his new spouse acquires a potential right to receive survivor benefits. That right vests when the owning spouse dies. After death, the present and former spouses often have conflicting rights: the former spouse under a divorce decree and/or QDRO, and the present spouse under 1055. In a series of recent cases, the federal courts have begun to deal with the conflict.
III. RELEVANT CASE LAW
Hopkins v. AT&T Global Information Solutions, 105 F.3d 153 (4th Cir. 1997).
The husband and his first wife were divorced, and the husband was ordered to pay alimony. He failed to pay, and the first wife obtained a judgment against him for arrears. The husband then retired. A state court enforced the first wife's judgment by entering a QDRO, directing the pension plan to pay the wife a portion of the husband's benefits and directing that she be named beneficiary of his survivor benefits. Before the QDRO was entered, the husband remarried.
After the husband died, the two wives asserted competing claims to his survivor benefits. The court held that upon the husband's retirement his second wife obtained a vested legal right to survivor benefits under 1055. Once the survivor benefits vested in the second wife, the husband did not own the rights, and they could not be taken away by the later-entered QDRO. Thus, the benefits were awarded to the second wife.
Comment: Hopkins is a solid decision. The first wife's alimony judgment obviously gave her no right to any specific property owned by the husband. She acquired no rights in the husband's pension plan until the state court entered its enforcement order, but that order was entered after retirement. The second wife's rights vested first, and she was properly awarded the benefits.
Rivers v. Central & South West Corp., 186 F.3d 681 (5th Cir. 1999).
The husband and his first wife were divorced. They signed a separation agreement, which made no reference to the husband's retirement benefits. The husband married his second wife, and then retired. Some years later, after the husband's death, the first wife filed an action in state court, seeking division of the retirement benefits on the theory that they were a community asset, omitted from the divorce settlement, which was owned by the parties as tenants in common, and subject to the law of partition. Citing Hopkins, the federal court held that the husband's pension rights irrevocably vested in the second wife at the time of his retirement. After that point, the court had no power to award any of the benefits to the first wife.
Comment: Rivers is a highly questionable extension of Hopkins. In Hopkins, the first wife did not have any right in the husband's pension plan until the state court entered an enforcement order after the husband retired. In Rivers, however, the pension was community property of the first marriage. It is completely clear in all community property states that when an asset is community property it is owned by both spouses together. If the separation agreement or divorce decree does not mention the asset, it is not awarded to the titled spouse but, rather, continues to be owned by both parties as tenants in common. There are literally dozens of community property cases applying this rule to all types of assets. The pension in Rivers was at least partly community property of the first marriage. After the divorce, it was owned by the husband and the first wife as tenants in common. Because the first wife had a legal title ownership interest in the plan which vested on the date of divorce, her rights vested well before the husband's retirement.
The result in Rivers is defensible only if one assumes that the first wife had no enforceable rights in the pension until and unless a QDRO was entered. Since no QDRO was entered before retirement, the result of that assumption would be to award the benefits to the second wife. The court did not discuss this point; it assumed without deciding that only a QDRO could make an actual transfer. The court's reasoning is therefore at best incomplete.
The cases discussed below hold, properly in this author's opinion, that the QDRO is only an administrative device needed to enforce a spouse's rights and that the rights themselves arise at their normal time under state law. This theory did not help the first wife in Hopkins as she did not have any state court right to the husband's retirement benefits until she obtained an enforcement order, after the husband retired. An alimony award, like a general money judgment, does not give the recipient rights in any specific property owned by the payor. In Rivers, however, the first wife had a specific, well-recognized, ownership interest in the pension dating from the time of divorce. The federal court, unfamiliar with community property law permitting the partition of omitted assets long after the divorce, failed to understand that the rights of the first wife vested before the husband's retirement.
The error in Rivers may, however, have been harmless. The husband there retired in 1983 and died in 1987. The wife did not assert her claim until 1997, ten years after the husband's death. It is difficult to avoid the conclusion that the first wife slept on her rights and that recovery should have been barred by laches. If the first wife had asserted her claim in a timely fashion, however, she should have prevailed.
Ross v. Ross, 308 N.J. Super. 132, 705 A.2d 784 (App. Div. 1998).
When the husband and wife were divorced, they signed a separation agreement. The agreement provided that the wife would receive the survivor annuity under the husband's pension plan. The agreement was incorporated into a divorce decree. The agreement called for entry of a QDRO, but before a QDRO could be entered the court divorced the parties. The husband immediately remarried, and one month later he died. The court held that the agreement, as incorporated into the court order, met the definition of a QDRO regarding one of the husband's pension plans. The first wife's rights under that plan therefore vested before the husband remarried or died. The agreement was not a QDRO regarding other plans, however, as those plans were not specifically named in the document. The court refused to permit entry of a QDRO after the fact, holding that an order which is not a QDRO cannot transfer benefits. The unstated implication is that the agreement and divorce decree transferred nothing; that upon the husband's death the benefits vested in the second spouse; and that the husband's estate thereafter owned no benefit to which a QDRO could attach.
Comment: Like Rivers, Ross assumes that a QDRO is the only device which can transfer pension benefits from one spouse to another. The court did not consider the Ninth Circuit's theory that ERISA prevents only the recognition of the transfer, so that a QDRO is only an enforcement device, and not an actual transfer of benefits. Given the court's obvious sympathy for the first wife's position, the author suspects that the court would have seriously considered the Ninth Circuit approach if that approach had been drawn to its attention.
Payne v. GM/UAW Pension Plan, No. 95-CV-73554DT, 1996 WL 943424 (E.D. Mich. May 7, 1996).
In a litigated divorce case, a Michigan state court ordered that the wife receive 45% of the husband's "pension." The order expressly stated that the wife was not the husband's surviving spouse for survivor benefit purposes. The husband died, and the wife returned to state court, obtaining a nunc pro tunc order granting her "full survivorship benefits" and naming her as surviving spouse. The plan administrator argued in federal court that the second state court order was not a QDRO, but the court disagreed. The order did not require payment of a benefit not available under the terms of the plan, as the plan did provide for survivor benefits. "[T]he amended QDRO was entered nunc pro tunc to a date prior to [the husband's] death. Thus, the designation was not made after death." 1996 WL 943424, at *5. The court expressly held that it was required to give full faith and credit to all provisions of the state court order, including both its substantive effect and its nunc pro tunc effective date. The wife therefore received full survivor benefits.
Samaroo v. AT&T Management Pension Plan, 193 F.3d 185 (3d Cir. 1999).
The husband and wife were divorced in 1984. The divorce decree incorporated but did not merge a separation agreement, which expressly divided the husband's retirement benefits. The agreement was silent on his survivor benefits. In 1987, without having remarried, the husband died. The wife filed an action in state court and obtained an order dividing the husband's survivor benefits on the theory that they had been omitted from the agreement because of a mutual mistake. The order was expressly made nunc pro tunc to the date of the original divorce decree. The federal court then held that ERISA prevented enforcement of the state court order. The husband's survivor benefits were available only to a surviving spouse, and when he died without a spouse his survivor benefits expired. The state court order dividing the survivor benefits was made after the husband's death, at a time when no survivor benefits existed to be divided. The court ignored the nunc pro tunc nature of the state court order, apparently under the theory that state law permitting the entry of nunc pro tunc orders was superceded by ERISA. The court directly criticized the contrary decision in Payne. A dissenting opinion would have recognized the nunc pro tunc effective date and held that the transfer was effective before the husband's death.
Comment: As between Samaroo and Payne, Payne is clearly the better decision. In both cases, a state judge entered the QDRO nunc pro tunc back to the date of the original divorce decree. Payne quite properly held that the federal court must give full faith and credit to the state court order, including its nunc pro tunc effective date, so that the transfer was legally complete before death occurred. Samaroo criticized Payne, holding that the QDRO issue must be decided under federal and not state law. But federal full-faith-and-credit law requires federal courts to give state court judgments the same effect that they would have in state court. The issue is therefore not federal law versus state law; it is federal full-faith-and-credit law versus federal ERISA law. In other contexts, the federal courts have held that they must accept and cannot question the nunc pro tunc nature of state court orders. See, e.g., Flitcroft v. Commissioner, 328 F.2d 449 (9th Cir. 1964); United States v. Hennen, 300 F. Supp. 256 (D. Nev. 1952). The majority in Samaroo identified no reason why it was free to ignore principles of full faith and credit which literally date back to the founding of our country. Future decisions should follow Payne, and reject Samaroo.
Trustees of Directors Guild of America-Producer Pension Benefits Plans v. Tise, No. 96-16799 (9th Cir. Dec. 6, 2000).
The mother obtained a state court judgment against the husband for arrears in child support. As a device for enforcing the judgment, a state court ordered that the father's pension plan refrain from distributing funds until a properly drafted QDRO could issue. After entry of that order, but before entry of an actual QDRO, the father died, leaving another woman as named beneficiary of the plan. The woman argued that the husband's entire pension fund vested in her upon the husband's death and that her vested rights could not thereafter be taken away by means of a QDRO. The court expressly held that no provision of federal law prevents entry of a QDRO after the owning spouse's death. The court particularly noted that, under federal law, when a DRO is submitted to the plan administrator for recognition as a QDRO, the administrator is required for a period of eighteen months to segregate benefits payable to the payee under the DRO. If the DRO is found to be a QDRO, the segregated benefits must be paid to the payee. This requirement shows, the court held, that enforceable rights can arise under a DRO before it is qualified as a QDRO. Thus, the transfer of rights does not occur when the order is qualified but, rather, when the order is initially entered. Qualification is a condition upon the enforcement of rights granted by state courts, but it is not an actual transfer of rights. Accord In re Gendreau, 122 F.3d 815 (9th Cir. 1995) (holding for similar reasons that a QDRO can be entered after the owning spouse files a petition in bankruptcy). Because the mother's rights dated back to the original state order orders, all of which predated the husband's death, the court held that the postdeath QDRO did not deprive the woman of any vested rights.
IV. ANALYSIS AND RECOMMENDATIONS
The reported cases resolve the conflict between the rights of former and present spouses by giving priority to the rights which vested first. Where the former spouse's rights under a divorce decree and/or QDRO vest before the present spouse's rights under 1055, the former spouse's rights prevail. When the present spouse's rights under 1055 vest before the rights of the former spouse, the present spouse's rights prevail, and the state court order dividing survivor benefits is often unenforceable. This first-in-time rule is the logical way for resolving conflicts between the rights of former and present spouses.
The cases disagree upon two important points. First, there are different theories as to when the former spouse's rights vest. The Ninth Circuit holds that the former spouse's rights vest when the state court enters an order awarding benefits, even if that order is not a QDRO. Entry of a QDRO is a necessary condition for enforcement, but the rights being enforced date back to the original order. No circuit has expressly rejected the Ninth Circuit rule, but the Fifth Circuit in Rivers and the New Jersey state court in Ross made decisions inconsistent with the Ninth Circuit position. Both cases held that the former spouse's rights vested only when the QDRO was entered, and not upon entry of earlier, nonqualified orders.
Second, there is a clear split as to whether the state court can enter a QDRO nunc pro tunc. This issue arises in the context of state court orders correcting mistakes or omissions in earlier orders. Payne recognizes the nunc pro tunc nature of such orders; Samaroo expressly holds otherwise. For the reasons stated above, Payne is clearly the better decision. Nevertheless, it is foreseeable that this split in authority will continue to exist.
What can the practicing attorney do to prevent a loss of benefits upon the remarriage or death of the owning spouse? The first line of defense against all of the problems discussed in this article is simple: have the QDRO entered as soon as possible after the divorce decree. This is prudent practice regarding any postdecree order, but the possibility of death or remarriage makes delay in the entry of a QDRO especially dangerous. Prompt drafting and entry of QDROs can greatly reduce exposure to the sorts of problems discussed in this article.
The second line of defense is to be careful about consenting to bifurcation of divorce cases. This is the fundamental lesson of Ross, where the court entered a bifurcated divorce decree. It is unclear whether the case was bifurcated specifically to permit remarriage, but the husband undeniably remarried just after the decree was entered. Moreover, his health was undeniably poor, and he died a month later. Where the owning spouse has a short-term intention to remarry, and particularly where his or her health is poor and division of retirement or survivor benefits by a QDRO is expected, unconditional bifurcation of the divorce case is a gamble against death.
Is there any way to bifurcate a divorce case without running the risk that a QDRO dividing survivor benefits will become unenforceable upon remarriage and/or death? If the second spouse properly waives his or her rights under 1055, conflicting spousal rights would not be a problem. But there would remain the risk of the Samaroo situation where the survivor benefits disappeared upon death and the plan administrator argued that to revive them would be to create a new benefit. A preliminary state court order dividing the benefits, entered before remarriage, would avoid the problem under the Ninth Circuit rule, where the first wife's rights vest upon entry of even a nonqualified order (assuming that a QDRO eventually issues). But other circuits have held that the former spouse's rights vest only upon the actual entry of a QDRO. Also, state courts are reluctant to allow the division of property before the entry of the final property division order. See generally Brett R. Turner, Equitable Distribution of Property 3.05 (2d ed. 1994 & Supp. 2000). The author therefore does not see any foolproof method for protecting a division of survivor benefits against death following a bifurcated decree. This is not a reason to avoid bifurcation completely, for bifurcation has other advantages. See generally id. 3.01. It is, however, a risk which must be assessed in determining whether good cause exists to bifurcate a divorce case.
The final line of defense would be to include a strong indemnity provision in the agreement, the divorce decree, and any subsequent pension division orders. Again, this is sound practice for any division of retirement benefits, but it is a particularly good idea in any order dividing survivor benefits when remarriage or death is on the horizon. An indemnity provision states simply that if the division order is not enforceable against the plan administrator the owning spouse will indemnify the nonowning spouse for any harm caused thereby. Thus, if survivor benefits are lost upon remarriage or death, the former spouse would have a claim against the owning spouse's estate. Since ERISA limits only the enforceability of orders entered against the plan itself, none of the problems discussed in this article would apply to an indemnity provision. Moreover, there is strong law in the context of military disability benefits holding that federal law permits the enforcement of indemnity agreements, even though federal law clearly absolutely prevents direct division. Id. 6.05. Indemnity provisions are not a perfect remedy, as they suffer from the same problem as any deferred distribution through payments between the spouses: the risk that the payor will cease compliance with the order, necessitating expensive enforcement proceedings. Indemnity, however, is clearly better than no remedy at all.
There are also steps which can be taken at the federal level to avoid the problem raised by the above cases. The author strongly supports the Ninth Circuit's rule that rights awarded by a QDRO date back to the entry of an earlier, unqualified order granting the same relief. Because of the complexity of retirement plans, it is inevitable that a QDRO will not be entered until after the divorce case is over. It is not reasonable to expect that the divorce itself will be delayed, and the parties' personal lives therefore left in limbo, while the plan administrator decides whether to recognize a draft QDRO. It is equally unreasonable that a delay in determining whether a DRO is a QDRO should affect the date as of which rights vest under the order. This is particularly true, as Tice noted, because federal law itself requires the segregation of benefits received after submission of the order to the plan. This is good evidence that Congress intended rights under the order to vest before actual recognition as a QDRO. If other circuits expressly reject the Ninth Circuit rule, ERISA should be amended to adopt the Ninth Circuit position.
More generally, the author must inquire whether the above cases do not create needless and expensive federal government involvement with the substantive law of domestic relations. There are good reasons, in both policy and constitutional law, why federal courts steer clear of domestic relations issues. "Federal courts lack power to issue [domestic relations orders] because of the special proficiency developed by state tribunals over the past century and a half handling issues that arise in the granting of such decrees." Ankenbrandt v. Richards, 504 U.S. 689, 704 (1992). "'The whole subject of domestic relations of husband and wife . . . belongs to the laws of the States and not to the laws of the United States.'" Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979) (quoting In re Burrus, 136 U.S. 586, 593-94 (1980)). The author has sympathy for pension plan officials who must construe QDROs, many of which are entered with little or no knowledge of the actual terms of the plan. Indeed, the fundamental purpose of QDROs, and their fundamental effect in the real world, has been to force domestic relations attorneys and courts to read the plan before dividing benefits under it, a practice which benefits everyone involved in the process. Turner, supra, 6.07 at 292 (Supp. 2000). The QDRO provisions are well within the power of the federal government, and they are good policy as well.
In each of the above cases except Hopkins, however, there was at least a colorable basis for holding under state law that the state law rights at issue vested before the rights of the second spouse. Failure to understand and apply state law, or perhaps substantive disagreement with the terms of state law, looms large in any reading of Rivers and Samaroo. When an order dividing survivor benefits is entered before death and remarriage, or when a later order relates back to an earlier time under settled state law, basic principles of federalism require that the federal courts respect the state order. ERISA should not, and the author would argue constitutionally cannot, be construed to permit federal judges to second-guess state judges on questions of state domestic relations law. All too often, the QDRO provisions of ERISA are being used to permit that type of second-guessing. In future cases, federal judges should show greater deference to state courts on questions of state domestic relations law.
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