A plan participant is currently legally separated from his wife and divorce papers have been filed. The participant wants to change his beneficiary from his almost ex-wife to someone else. Am I correct in telling him that he must wait until the divorce is final to change his beneficiary without her consent?

He is also wondering if he needs to worry about her trying to claim or get some of his 401(k) money in the divorce settlement.

Depending on the length of their marriage (and maybe the state they're living in), she is probably entitled to some of his accrued balance. It's called a Domestic Relations Order...and it will probably be a part of the divorce proceedings. I'd expect it if I were him. It doesn't matter if/when he changes his beneficiary. The lawyers will write up the Order, and once it's deemed "qualified", a judge will enforce it.

Changing the beneficiary will be based on the rules for the specific retirement plan.

Some plan: 1. require spousal consent if the spouse will get less than 50% of the death proceeds, 2. other plans may require spousal consent if the spouse is named as the bene for less than 100%, 3. some plan do not allow any married participants to name non-spouses, and 3. some non-ERISA plans will allow the participant to name any bene with spousal consent.

Another issue is that the Plan should have (written) procedures about how it will handle a QDRO. For example, it is especially important that the Employer be able to review any DRO that claims to be a QDRO. The point is to establish as soon as possible that the requirements for "qualified" status are met, or if not, where the DRO falls short. This is for the protection of the Plan, primarily.

Also, it is not up to the employer to "warn" the EE about a QDRO; it is up to his attorney.

Husband dies before retiring, is married at the time of his death to second wife, who is beneficiary of pension plan that is protected by erisa. ex-spouse is now filing a claim for the money. She had a qdro and at the time of the divorce received 50% lump sum distribution. qdro says after lump sum is distributed she gives up all rights as surviving spouse upon participants death. plan administrator is treating her claim as a real claim. She says that dates on qdro were signed before divorce was final??? what does this have to do with anything? any advice would be appreciated.

Until a person is legally divorced, they are considered married, and the rules for married participants apply. A person can always try and get a qdro which assigns a portion of the participant's plan benefit to the ex-spouse.

To Trishfri, I agree with you, I don't see what the old qdro has to do with the new benefits. However, there's no reason the plan administrator can double check it and treat it as a claim.

Caution with regard to comment by dsilver.

There can be circumstances where a legally separated individual is treated as divorced. See Reg. 1.401(a)-20 Q&A 27. But of course, check the provisions of the plan document.

Thank you for the cite regarding the legal separation.

Pax,

Please post the website link pertaining to that U.S. Dept. of the Treasury regulation you posted. I'm interested in viewing more details pertaining to that and similar regulations governing 401k plans.

Thanks, in advance.

-Warren-

Data76, hope this helps:
General look up of Labor Regs: Title 29 http://www.access.gpo.gov/nara/cfr/waisidx...v9_99.html#2509

US Govt. Pubs: http://www.dol.gov/dol/pwba/public/pubs/qdrofact.htm
http://www.pbgc.gov/divorce3.htm
http://www.irs.ustreas.gov/prod/forms_pubs...pubs/p50404.htm (Pub 504,Divorced or Separated Individuals)

QMSCO & Proposed QMCSO : http://www.dol.gov/dol/pwba/public/program...y95/conklin.htm
http://www.dol.gov/dol/pwba/public/regs/fe...ed/99029412.htm (text of proposed Model Medical Child Support Order)

Can an ex-wife normally get a QDRO after the participant dies? For instance: Ex and participant had 2 children who have reached the age of majority before the participant dies. There is a small child support arrearage upon the date of his death. Can the Ex get a QDRO? Can the children get a QDRO for this arrearage? Any advice is greatly appreciated. Thank you.