There is only one issue to determine on the cross-motions for summary judgment by Plaintiff and the Plan, which is, whether either the Judgment or the October 1997 Order constitutes a QDRO assigning Plaintiff rights in survivor's benefits from Jose Guzman's interest in the Plan. That question is one of law involving the statutory construction of the legal requirements of a QDRO, rather than the interpretation of the Plan, and therefore, there is no deference to the Plan administrator's determination. Samaroo v. Samaroo, 193 F.3d 185, 189 (3d Cir.1999).

Guzman v. Commonwealth Edison Co., 99 C 582, 2000 WL 1898846 (N.D. Ill. Dec. 28, 2000)


See Trs. of Directors Guild of Am. Producer Pension Benefits Plans v. Tise, 234 F.3d 415, 421, as amended upon denial of reh'g, 255 F.3d 661 (9th Cir.2000) (where child support order was converted to a QDRO nunc pro tunc after the death of plan participant, court reasoned there was nothing in ERISA requiring that a QDRO must be finalized before benefits become payable). As was recognized by the United States Court of Appeals for the Ninth Circuit in Tise, the detailed QDRO requirements set forth in ERISA are devoid of any requirement that a QDRO be in place before plan benefits reach pay *489 status under the plan. Id. at 421. Nor do the QDRO provisions of ERISA suggest that the alternate payee has no interest in plan benefits until she obtains a QDRO; rather, they merely prevent enforcement of that already-existing interest until the QDRO is obtained. Id. (

Files v. ExxonMobil Pension Plan, 428 F.3d 478, 488-89 (3d Cir. 2005)


Ultimately, it matters not whether we deem the Pension Plan on notice prior to Rutyna's death given its policies and the benefit segregation undertaken by the Savings Plan, or after Rutyna's death, when it received the PSA in April 2002. Regardless of notice, we reach the same conclusion-that Files simply engaged the statutorily contemplated process to “qualify” the PSA as a QDRO in order to enforce pre-existing rights. Nothing in the statute, or in our precedent, requires that a QDRO be in place prior to the death of a plan participant when the QDRO that is ultimately obtained by engaging the statutory process simply seeks to enforce a separate interest in a pension benefit that existed before the death of the plan participant. See Tise, 234 F.3d at 421; Patton v. Denver Post Corp., 326 F.3d 1148, 1153-54 (10th Cir.2003) (upholding a nunc pro tunc DRO issued eleven years after a divorce decree pertaining to plan benefits from a plan not known about at the time of the divorce, and declining to infer that the plan must have been notified of the interest prior to the death of the participant); Hogan v. Raytheon Co., 302 F.3d 854, 857 (8th Cir.2002) (permitting posthumous qualification of a DRO because during husband-participant's life, plan was provided with a copy of divorce decree awarding ex-wife fifty percent of husband-participant's present retirement funds, and DRO obtained subsequent to husband-participant's death designating ex-wife as alternate payee for purposes of survivorship benefits was done within the eighteen month period permitted to secure a QDRO).

Files v. ExxonMobil Pension Plan, 428 F.3d 478, 491 (3d Cir. 2005)


The Retirement Equity Act of 1984 (“REA”), Pub.L. 98-397, 98 Stat. 1426, amended ERISA in two important ways with respect to surviving spouses. REA first sought to “ensure a stream of income” to surviving spouses by requiring pension plans to provide automatic surviving spouse benefits. Boggs, 520 U.S. at 843, 117 S.Ct. 1754. Section 1055, as amended by REA, provides that if a vested participant dies before the annuity start date, leaving a surviving spouse to whom he has been married for at least one year, “a qualified preretirement survivor annuity [QPSA] shall be provided to the surviving spouse.”3 29 U.S.C. § 1055(a)(2). The QPSA is an annuity for the life of the surviving spouse that must be at least fifty percent of the annuity amount which would have been payable during the joint lives of the participant and spouse. Id. at § 1055(e)(2). Provision of the QPSA may be waived by the participant only if the spouse consents in writing to the designation of another beneficiary. Id. at § 1055(c)(2).4 Applying these provisions to the case at hand, it is undisputed that Mary was Michael's “surviving spouse” at the time of his death, and Mary never *1096 consented to the designation of another beneficiary.

REA also introduced the QDRO exception, id. at § 1056(d), which “elevates a plan participant's legal obligations, commonly to a former spouse or children of a previous marriage, over the participant's express wishes to provide for other individuals as designated beneficiaries.” Trustees of the Directors Guild of America-Producer Pension Benefits Plans v. Tise, 234 F.3d 415, 425 (9th Cir.2000). The QDRO is a subset of “domestic relations orders” that recognizes the right of an alternate payee to “receive all or a portion of the benefits payable with respect to a participant under the plan.” 29 U.S.C. § 1056(d)(3)(B)(i)(I). If a domestic relations order qualifies as a QDRO, the designated alternate payee-“any spouse, former spouse, child, or other dependent of a participant”-shall be considered “a beneficiary under the plan.” Id. at §§ 1056(d)(3)(J)-(K). “Each pension plan shall provide for the payment of benefits in accordance with the applicable requirements of any qualified domestic relations order.” Id. at § 1056(d)(3)(A).


Hamilton v. Washington State Plumbing & Pipefitting Indus. Pension Plan, 433 F.3d 1091, 1095-96 (9th Cir. 2006)


A domestic relations order6 qualifies as a QDRO only if it meets the “specificity” requirements set forth in § 1056(d)(3)(C): (1) the order must specify the name and mailing address of the alternate payee and the affected plan participant, (2) the amount or percentage of the participant's benefits to be paid or the means by which that amount will be determined, (3) the number of payments or time period to which the order applies, and (4) each plan to which the order applies. In addition, under § 1056(d)(3)(D), a QDRO must not (1) require the plan to provide any type of benefit not otherwise provided, (2) require the plan to provide increased benefits, or (3) require benefits to be paid to an alternate payee which must be paid to another alternate payee under another QDRO.7

Hamilton v. Washington State Plumbing & Pipefitting Indus. Pension Plan, 433 F.3d 1091, 1097 (9th Cir. 2006)



Despite Defendant's assertions to the contrary, the Court finds no provisions in ERISA that require that the QDRO be entered prior to the death of the participant. Many other courts have reached the *1021 same conclusion and caused an order to be entered making the QDRO effective nunc pro tunc to a date prior to the death of the participant. See, e.g., Payne v. GM/UAW Pension Plan Adm'r, 1996 WL 943424 (E.D.Mich., May 7, 1996) (finding that there was no provision in ERISA that requires a participant give notice of a QDRO prior to death and providing for a nunc pro tunc order where divorce order provided for issuance of a QDRO within 30 days but husband died before it was entered); Patton v. Denver Post Corp., 326 F.3d 1148, 1153 (10th Cir.2003) (allowing a nunc pro tunc order to relate the QDRO back to a time before the participant's death); Hogan v. Raytheon, Co., 302 F.3d 854, 857 (8th Cir.2002) (QDRO entered posthumously as the participant's death “prior to the entry of the ... Order is irrelevant”).

Galenski v. Ford Motor Co. Pension Plan, 421 F. Supp. 2d 1015, 1020-21 (E.D. Mich. 2006) rev'd, 290 F. App'x 815 (6th Cir. 2008)