Survivor Benefits Definition: A survivor benefit is a benefit which is paid by a pension plan to the designated beneficiary of an employee (usually a spouse) upon the death of the employee. Survivor benefits can be placed in two categories: pre-retirement survivor benefits and post-retirement survivor benefits. A pre-retirement survivor benefit is paid to the designated beneficiary of an employee in the event of the employee’s death prior to retirement. A post-retirement survivor benefit is paid to a designated beneficiary upon the death of the employee after retirement. In most cases, the employee must make an affirmative election to establish these survivor benefits, and must always keep a current beneficiary designation on file with the Plan.

General Discussion: The issues surrounding the classification and division of survivor benefits as marital property can be very complicated. The intention of the information provided herein is to shed some light on the basic issues. Certainly, the issues inherent in a particular case may be more complicated than the context of the information provided, and further research may be necessary to arrive at a suitable solution. Therefore, the information provided herein is intended as a general discussion.

Survivor benefits are typically elected to protect a spouse’s interest in a pension. They can be viewed as a type of "insurance policy" relative to the pension. In many cases, once parties are divorced, and all property is divided, a former spouse no longer has an interest in the pension of the other spouse. Certainly this is true if the pension is divided using an immediate offset. Under such a case, the employee keeps his/her interest in the pension and the other spouse takes another asset of equal value in lieu of his/her interest in the pension. Therefore, each party receives his/her fair share of the property at the time of the divorce. In such a case, survivor benefits would be unnecessary since the Alternate Payee received his/her full interest in the pension at the time of the divorce.

On the other hand, if the parties decide to divide the pension using deferred distribution, it may be necessary to protect the former spouse’s interest in the pension until such time as he/she can receive payment for their portion of the property. When drafting a Qualified Domestic Relations Order (QDRO) to divide a pension at the time the benefits have reached maturity for distribution, it may be necessary to establish the former spouse’s entitlement to a pre-retirement survivor annuity, in the event the employee should die between the time the QDRO is drafted and the date the former spouse receives a distribution. Establishing this survivor annuity protects the former spouse’s awarded share of the pension. Further, under some plans it may be necessary to establish post-retirement survivor benefits for the former spouse to protect his/her interest in the pension plan if the employee dies prematurely after the monthly pension payments commence.

This discussion thus far has covered the reasons a survivor benefit may or may not be necessary in the context of a divorce. Certainly, if a survivor benefit has already been established at the time of the divorce, such is the case if the employee is retired, the issues dealing with this survivor benefit may be different than previously discussed. In this scenario, the survivor benefit could be considered the property of the former spouse, therefore, subject to distribution.

Classification: For purposes of this discussion, the classification of survivor benefits is addressed as such relates to an immediate offset and a deferred distribution.

Survivor Benefits and Immediate Offset

Addressing a survivor benefit in an immediate offset is only applicable if the employee has retired and elected a post-retirement survivor benefit for the non-employee spouse. Under most pension plans, once an election for post-retirement survivorship benefits is made, such election is irrevocable, even in cases of divorce. Therefore, even though the parties are divorcing, the nonemployee spouse is still guaranteed to receive a survivor annuity upon the death of the employee. This guaranteed right of the nonemployee to a benefit upon the death of the employee can be viewed as the property of the nonemployee under both the dual property and all property models. Since such survivor benefit could be viewed as the property of the nonemployee/former spouse, it would be subject to distribution upon divorce.

Unless the employee makes an election for survivor benefits for the nonemployee spouse that is viewed by the plan as irrevocable, a guaranteed right to benefits has not been created for the nonemployee spouse. Therefore, if the absolute right to a survivor benefit has not been created, a survivor benefit would not meet the definition of "property" under either the dual property or all property models, and therefore would not be subject to distribution.

Pre-retirement survivor benefits are paid to the designated beneficiary upon the death of the employee while still employed. These survivor benefits are typically not viewed as property of either party under either of the property models. Such survivor benefits are paid instead of the actual pension in the event the employee should die prematurely during employment. If the employee dies during the divorce process, negotiation of property distribution could become a moot point.

Survivor Benefits and Deferred Distribution

In most circumstances, the courts have ruled that if it is necessary to provide survivor benefits in order to protect the former spouse’s full property interest in the pension, such designation is appropriate. The courts have not viewed the election of pre-retirement survivor benefits and/or post-retirement survivor benefits under such a circumstance as an additional piece of property being awarded to the former spouse, but instead as a mechanism to protect the former spouse’s already awarded property interest.

It is important to note that it is not always necessary to establish survivorship rights for a former spouse in order to protect his/her property interest. The nuances of any plan subject to deferred distribution should be investigated before any irreversible elections are made on behalf of the former spouse.

Valuation: As mentioned earlier, if a survivor benefit has met the definition of property under either of the property models, it is possible to determine an estimate of the present value of such benefit by using various assumptions. Included in this analysis would be all of the assumptions normally made when computing the present value of retirement benefits, as well as, an estimate of the date of death of the employee and the life expectancy of the former spouse after such date.

Distribution:

The only possible method for distributing property rights in a survivor benefit which has already been established for a former spouse at the time of the employee’s retirement is through an immediate offset. ERISA does not allow assignment of survivor benefits to another party, and in many cases the right of the former spouse to the survivor benefit is irrevocable.

However, sometimes it is necessary to establish a right to survivor benefits when using deferred distribution. Establishing these survivorship rights protects the former spouse’s interest in his/her already awarded property.

State Case Law

The following is a summary of case laws we have come across in our research of this topic. If nothing is listed under a particular state it is because we have not found any pertinent cases relative to this topic. If you know of a case that relates to this topic, and do not find it listed here, please e-mail us the citation so that we can include it in this section.
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ALABAMA

ALASKA

ARIZONA

ARKANSAS

CALIFORNIA

COLORADO

In re Marriage of Fenimore, 782 P.2d 872 (Colo. Ct. App. 1989)
Court refused to treat survivor benefits as marital property because they are too speculative to value with reasonable accuracy.

CONNECTICUT

DELAWARE

DISTRICT OF COLUMBIA

FLORIDA

Herman v. Herman, 624 So.2d 343 (Fla. Dist. Ct. App. 1993)
Wife should be granted survivor benefits after a 33 year marriage in which she worked as a homemaker and raised the couple’s children.

GEORGIA

HAWAII

IDAHO

ILLINOIS

Moore v. Moore, 621 N.E.2d 239 (1993)
Even though it is of a contingent nature, a survivor’s benefit has a determinable value, computed by using life-expectancy tables, and it is properly considered a marital asset.

INDIANA

IOWA

KANSAS

KENTUCKY

LOUISIANA

MAINE

MARYLAND

MASSACHUSETTS

Dewan, 566 N.E. 2d 1132 (1991)
The election of survivorship benefits diminishes the annual amount payable on retirement and that may or may not be appropriate, depending on the circumstances.

MICHIGAN

MINNESOTA

MISSISSIPPI

MISSOURI

Weiss v. Weiss, 702 SM.2d 948 (Mo. Ct. App. 1986)
Wife awarded survivorship, but its value was attributable as her asset.

MONTANA

NEBRASKA

NEVADA

NEW HAMPSHIRE

NEW JERSEY

Moore v. Moore, 621 N.E.2d 239 (M. App. Ct. 1993)
Appeals court held the court justified in ordering husband to choose a survivorship annuity benefiting his exwife; however, court should have granted husband some compensation for reduction in his pension payments.

NEW MEXICO

Irwin, 910 P.2d 342 (1995)
Survivor benefits should be valued to apportion each parties share.

NEW YORK

NORTH CAROLINA

NORTH DAKOTA

OHIO

Hoyt v. Hoyt, 559 N.E2d 1292 (1990)
Court awarded full survivorship benefits to 38-year-old wife after an 18 1/2 year marriage.

OKLAHOMA

OREGON

PENNSYLVANIA

Palladino, 713 A. 2d 676 (1998)
A survivor annuity, which derived from a retirement pension, is a marital asset which has value separate from the pension and is subject to equitable distribution.

RHODE ISLAND

SOUTH CAROLINA

SOUTH DAKOTA

TENNESSEE

TEXAS

UTAH

Burt v. Burt, 799 P.2d 1166 (Utah Ct. App. 1990)
The court should treat the survivor annuity much like a pension, assigning a present value or giving the wife rights to the pension.

VERMONT

VIRGINIA

WASHINGTON

WEST VIRGINIA

WISCONSIN

WYOMING

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