What If the Participant Dies Before the QDRO Is Drafted?
If you do not draft the QDRO coincident with the separation agreement, nonparticipants run the risk of forfeiting all their pension rights if the participant dies before the QDRO is approved by the plan administrator. A properly drafted QDRO will incorporate survivorship rights for the alternate payee, assuring a lifetime of benefits. The alternate payee should be considered a coowner of the participant’s pension benefits, not merely one who stands in the shoes of a creditor. Therefore, appropriate survivorship coverage should be negotiated with opposing counsel at the time of divorce, and the QDRO drafted immediately. Under certain conditions, a QDRO may be submitted to the plan administrator after the death of the plan participant. For example, if the plan is paying out a surviving spouse annuity to a subsequent spouse, a timely drafted QDRO might provide that all or a portion of such survivor benefits are to become payable to the former spouse.
