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Death of former spouse can affect decreed retirement benefits

Provisions within a divorce settlement divide marital assets, but some of those assets are not immediately realized at the time of divorce. Certain asset divisions take place over time. Retirement benefits from a former spouse, like pension and 401(k) plans, may not be realized for years.

Legal experts caution the division of retirement benefits at divorce should take all short and long-term scenarios into consideration. One of the issues attorneys insist must be explored carefully is what happens to benefits if a former spouse dies.

Qualified Domestic Relations Orders are legal vehicles used to split retirement benefits between former married partners. So-called QDROs allow a person who is not an employee to share in the worker's pension. Some QDROs are so involved that many times the actual portioning of benefits takes place well after a divorce is finalized.

The lag time between the decision to divorce and the completion of a QDRO can be a financially fragile time for a spouse expecting a share of an ex-partner's retirement. If a spouse dies before a settlement or QDRO is decided, the fate of retirement benefits may be at risk.

If an employee dies with a 401(k) plan listing a beneficiary not part of a divorce agreement, a former spouse could lose retirement benefits. Some lawyers lessen the chances of this happening by requiring spouses to agree to no changes to 401(k) beneficiaries until a QDRO is completed.

Lock-tight divorce decrees cover what happens to retirement benefits at any time, during or after divorce, if a former spouse dies. With many standard pension plans, benefits may not be payable to former spouses if an employee dies before retiring, despite what a divorce settlement dictates.

Agreements about shared retirement benefits between divorcing spouses must be clear and accurate in divorce decrees and QDROs to ensure the present and future protection of a surviving spouse.

The death of a spouse is usually not a top-of-mind consideration for many people during divorce. Experts believe the subject must be covered legally if a settlement is to be fair under any circumstances.

Source:, "My Ex Died - Now I Can't Get the Pension I Was Awarded in Our Divorce," Emily W. McBurney, Oct. 7, 2011

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