Problem: Man and woman get married. During the marriage, man changes gender. The women get divorced. Now comes time to prepare the QDROs. Some plans are getting sticky about assuring that the QDRO is valid under federal law as a transfer between spouses/former spouses as those terms are defined by DOMA (specifically, that one party is a man and the other a woman.) Some administrtors (e.g., Fidelity) require that the parties make a sworn statement that they meet the DOMA requirements.

How do I finese this issue, given that the parties are no longer man and woman? Anybody with experience

It would seem to me that DOMA caused an end to an otherwise valid marriage at the time of the sex change operation (or some provision or interpretation of DOMA allows a heterosexual marriage to remain valid passed a sex change operation, in which case the valid marriage is now dissolving).

Either way, there once was a valid DOMA marriage and it is now ended or ending. The marital property rights are what are being sorted out, and the QDRO incident to that.

That's how I position it, anyway.

Isnt the question whether there is a genetic male who is a party to the marriage,not whether a sex change has occurred. DOMA only prohibits the recognition of marriage by members of the same sex. The fact that some one has a sex change does not mean that the person has changed his/her sexual identity. For example it was recenlty reported that a "man" was pregnant. However, the "man" was genetically born a female who had a sex change operaton but was still able to bear a child. Therefore biologically this person is a woman. A gender change does not change bilogical sexual identity.

How about DOMA is irrelevant for the division itself? The QDDRO statute is an exception to the anti-assignment provisions of the Code/ERISA. By its terms, it calls for implementation of a domestic relations order, which is a creature of state law. There is nothing in the statute about federal law of marriage in the requirements for qualification, which are the only barriers to implementation of the order in accordance with its terms.

It starts getting more complicated when one has to decide how to apply the income tax rules on the distribution. In a case of gender change, I still think you have a spouse or former spouse as alternate payee because at one time they were spouses even under DOMA.

huh? How is DOMA is irrevant for the division?

414(p)(1)(A) defines a QDRO as an order which creates or recognizes the existance of an Alternate Payee's rights to benefits payable to a participant under the plan.
414(p)(8) defines an AP to include a spouse or former spouse which under DOMA must be a member of the opposite sex because the definition of spouse under DOMA applies to all federal laws: tax, ERISA,, social security, immigration, etc.

How can a same sex partner qualify as a spouse a QDRO who is entitled to a participant's benefits?

Does DOMA tag gender by sexual "plumbing" or sexual "identity"? There could be many homosexual couples plumbed the same way by nature but with opposing sexual identities (one of them sexually identified with the gender opposite of his/her plumbing). I hate to think what due diligence might require in this regard. What's a poor plan administrator to do when presented with any QDRO? or in dealing with QJSA/QPSA rights? or default death beneficiary situations? or health insurance coverage of a spouse? Etc.? Before dealing with any of these situations, get certification of the couple's plumbing from a physician, and their sexual identities from a psychiatrist?

Sorry, I was sloppy in the first paragraph about limiting the application to the sex change circumstances and the irrelevance to DOMA with respect to the timing of the end of the marriage and issuance of the domestic relations order. In the end, a benefit is payable to a former spouse who qualifies under DOMA. For same sex marriages, we have the usual analysis about whether or not the partner was a dependent, and the alternate taxation rules when the dependent partner is not a former spouse, as implied by the second paragraph.

I also think "don't ask, don't tell" will protect a fiduciary who is reasonably not aware of the sex issues. The published Department of Labor guidance says that the plan adminstrator does not have to look through the face of the order into the state court proceedings, but that the plan administrator cannot disregard facts (which would include terms of the order) that suggest something is amiss with respect to a federal qualification criterion. Pat, Patrick or Patricia?