M.D. Ala. Addresses Split Among Circuits Re Requirement of ERISA That Qualified Domestic Relations Order Be Received Before Death

Per R.A.F. ex rel. Woodall v. Southern Co. Pension Plan, 2008 WL 2397391 (M.D. Ala. Jun 10, 2008):

The defendants claim the divorce decree does not qualify as a QDRO because it forces the Plan to pay benefits not otherwise provided under the Plan. The defendants claim that under the Plan, when a participant dies single without a QDRO in place, all benefits end. Because there was no QDRO on file when Fondren died, the Plan cannot pay any benefits. The Eleventh Circuit has not addressed whether ERISA requires a party to qualify a QDRO prior to the death of a participant, and there is a circuit split on this issue. See Jayne E. Zanglein & Susan Stable, ERISA Litigation 887-88 (2d ed.2005). Some courts have required a party to qualify a QDRO before a participant's death. See Samaroo v. Samaroo, 193 F.3d 185, 191 (3d Cir.1999) (holding that a QDRO must be qualified prior to a participant's death because "successful operation of a defined benefit plan requires the plan's liabilities be ascertainable as of particular dates"); Guzman v. Commonwealth Edison Co., No. 99-582, 2000 WL 1898846, at *3 (N.D.Ill.Dec.28, 2000) (stating that "[c]ourts have routinely concluded that rights to survivor's benefits are fixed a[t] the participant's death, and a valid QDRO cannot be entered after the participant's death that would expand the liability of the Plan"). Others have found ERISA contains no such requirement. See Patton v. Denver Post Corp., 326 F.3d 1148, 1153 (10th Cir.2003) (allowing for a nunc pro tunc order); Hogan v. Raytheon, Co., 302 F.3d 854, 857 (8th Cir.2002) (holding that a domestic relations order could be qualified posthumously); Trs. of Dirs. Guild of Am.-Producer Pension Benefits Plans v. Tise, 234 F.3d 415, 421-23, amended, 255 F.3d 661 (9th Cir.2000) (finding that "[b]ecause a QDRO only renders enforceable an already-existing interest, there is no conceptual reason why a QDRO must be obtained before the plan participant's benefits become payable on account of his retirement or death"). In the absence of Eleventh Circuit authority, the court assumes here that ERISA does not require a QDRO to be received prior to a participant's death.