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The Divorce Encyclopedia
Spousal Survivorship Benefits

Term Definition Spousal Survivorship Benefits - the rights and interests of a surviving widow or widower, including the surviving former spouse, available under deferred pay plans upon the spouse’s death, either before or after reaching retirement age.
Application in Divorce Spousal survivorship benefits are subject to distribution in a divorce. A majority of all pension plans are protect by the Employment Income Security Act (ERISA), which, among other specifications, provides that retirement benefits cannot be transferred from an owner-spouse to a nonowner spouse without a Qualified Domestic Relations Order (QDRO).

A QDRO establishes "an alternate payee’s right to ... receive all or a portion of the benefit" payable to the owner, specifies the names and addresss of the each participant and each alternate payee, the duration of the order and identifies the plan or plans to which it applies. Specifically, the QDRO may only apply to existing benefits.

Problems may arise when the QDRO is not entered shortly after the divorce. Divorced spouses who may have had a legitimate claim on survivor’s benefits may find themselves locked out when a former spouse remarries and these benefits vest in a second spouse.

To divide a pension plan as a result of divorce, therefore, a QDRO must be prepared, a court must approve, and it must be accepted by the pension plan administrator.

In any marital settlement agreement where child or spousal support is paid, provision should be made for the death of the payor. This includes Social Security benefits, if applicable, and QDROs and DROs.

See also QDRO; DRO.

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