Background and Context

Under ERISA Section 205 and IRC Sections 401(a)(11) and 417, retirement plans are required to provide a participant’s spouse a survivor benefit. In other words, if the participant passes away the survivor benefit should apply to the surviving spouse. This applies to both defined benefit plans and defined contribution plans. It is important to carefully review the entire retirement plan to ensure the surviving benefits are identified and properly delineated in the QDRO.

Under federal law, for certain defined benefit plans and defined contribution plans, if the participant starts to receive payments while married the participant’s spouse may be entitled to receive a qualified joint and survivor annuity (commonly referred to as a QJSA) unless agreed to differently between the spouses. If the spouses have a separate agreement it would be important to specify the arrangement in the QDRO so it is clear to the plan administrator how this will be handled.

A QJSA informs the plan administrator to make periodic payments from the retirement plan to the participant until an agreed upon payment period. Often this agreed upon payment period is when the participant passes away. At that point in time the survivor benefits kick in for the survivor’s remaining life. 

When there are non-forfeiture benefits in the mix

Plans that have a “non-forfeiture benefit” have to pay surviving spouses what is referred to as a pre-retirement survivor annuity (QPSA) for the remainder of the survivor’s life if the participant passes away before any payments begin.

It is important to note, not all defined contribution plans are designed the same way. Only some are required to make QJSA and QPSA payments to surviving spouses. If the QPSA is not part of the retirement plan then the retirement plan may have to distribute the entire account balance to the surviving spouse when the participant passes away.

Sensitive issue around new marriages and survivor benefits

If the participant did not receive any benefit payments from the retirement plan and gets a divorce but later remarries the new spouse is awarded the surviving benefits. A well defined QDRO can manage these financial risks by inserting language whereby the first spouse will receive the benefits unless the participant and the alternate payee agree to different terms.

About the Author

Larry Smith is a Founding Partner of Divorce Outcomes, a specialized professional services firm that manages all of the financial aspects in a divorce process. Since 2003 he has worked as a trusted financial advisor, financial advocate, divorce architect and technical financial expert; he is not an attorney. He is an alumni of KPMG and Andersen with expertise in technical accounting, forensics, sophisticated taxation, management consulting, risk management, advanced process engineering, business combinations, divorce management, multi-party negotiations, advanced quality analytics and cognitive performance technologies. Since 1986 Larry has been advising individuals and organizations about innovative financial solutions to resolve complex financial challenges that arise in life and in business.

For both personal and business divorces, Larry is considered an expert in divorce strategies, divorce process management, financial divorce architecture, financial risk management, taxation for divorces, financial divorce forensics, advanced divorce analytics, financial divorce negotiations and mediation, business valuations and sophisticated equity structures. He helps clients shape complex financial decisions, manage communication risks and ever-changing negotiating positions to strategically preserve or grow wealth from these types of transactions.

If You Have a Question

If you have a question, feel free to contact me at [email protected] or 617-680-5222. The call is free. I will spend 30–60 minutes with you. I will provide you an honest assessment as to where I think you are positioned in your divorce process or answer any questions you have. I may provide you some guidance, insight or advice that you can take with you as you wish. There is no obligation to move forward. The phone call is designed to ease your fears, provide you some options to pursue and a potential road to run on that can lead you down a path to achieve a successful outcome.

About Divorce Outcomes

Divorce Outcomes is a specialty services firm that helps people both domestically and internationally manage all of the financial decisions that arise in their divorce process. We are not attorneys. We are financial experts who partner with our clients as their personal financial advocates. We help our clients manage their divorce process, uncover hidden financial risks, architect divorce solutions, manage ever-changing negotiating positions, communicate complex financial matters and close the divorce process as soon as possible with a goal to arrive at the best outcomes possible. Throughout the process we evaluate the current state of our clients’ financial lives with an objective to best reposition their future. We do not sell any products. We simply raise issues that are in our clients best interest. Our clients share with us we:

  • unfold, analyze and repackage their financial life so they are well positioned after their divorce
  • preserve the value of their business or marital estate
  • continuously strive to provide a return on our services
  • build balanced financial solutions grounded in evidence
  • find ways to make our client, and at times both parties, money through the process
  • design their divorce to work for them and their family’s life
  • provide mental clarity to make decisions
  • reduce the total process time from start to close
  • minimize the stress and unpleasant memories that can last a lifetime

As we reach an agreed upon settlement structure, we help our clients identify a fitting attorney who can leverage the financial solution to draft and record the requisite legal documents. Where outcomes are at risk from a traditional process, we function as expert financial negotiators or financial mediators to turn around the situation and achieve our client’s desired outcomes.

Learn more about us at or review our blogs to gain a clearer understanding about our approach and how we maximize the financial outcomes for our clients.


This communication is for general informational purposes only which may or may not reflect the most current developments. It is not intended to constitute formal advice or a recommended course of action as every person’s situation is unique and different. The information here is not intended to be, and should not be, relied upon by the recipient to make a decision without professional guidance.

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