NJSBA Family Law Section

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  • 1.  401k Participant dies before QDRO implemented

    Posted 07-07-2017 02:36 PM
    Hello all,
    Does anyone have any idea how I should handle the distribution of a 401k when the QDRO was never entered and now the participant is deceased. Parties were divorced over 20 years ago and I guess the QDRO fell through the cracks. I am assuming I need to get the estate involved in signing the QDRO but thought I would throw this out there to you good people.

    Thank you!
    Rosanne

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    Rosanne DeTorres Esq.
    Flemington NJ
    (908) 284-6005
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  • 2.  RE: 401k Participant dies before QDRO implemented

    Posted 07-07-2017 03:03 PM
    You need to file an Order to Show Cause to restrain the 401k administrator from paying out the benefits to the designated beneficiary until you get this sorted out.  As part of the application you should ask for the court to impose a constructive trust on the portion of the account awarded to your client at the time of the divorce, and for the administrator to ultimately be compelled to pay those monies to your client, with the balance going to the beneficiary.  I haven't researched it in a long time but my recollection is a qdro can't be entered post-death unless it is amending/correcting an earlier one which is why you need to go the constructive trust route. I believe there is a trial court case, Evans v. Evans,  which I think should help you with the constructive trust argument.  Good luck.

    Brian G. Paul, Esq.
    Certified Matrimonial Attorney
    Sent from my Samsung Galaxy S7 smartphone



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