|
The Ross decision came down in January
1998. In reaching its decision the Ross court opined as
follows:
| |
Without a doubt, it is more equitable to satisfy
the obvious intent of the PSA agreement and grant Ross
the survivor benefits of all of Mr. Ross's pensions
pursuant to the language in the PSA that Ross shall be
deemed the surviving spouse for any survivor annuity
(emphasis mine). It is clear, however, that survivorship
benefits are governed by ERISA unless a valid QDRO
exists or the PSA satisfies the QDRO prerequisites under
the REA. The statute specifically provides that where a
domestic relations order which is not qualified exists,
federal common law preempts state law… The unfortunate
result is that equity will not prevail…
Here, no QDRO existed at the time of Mr. Ross's
death. No federal case has allowed a QDRO to be entered
after a participant's death… (emphasis mine) |
From the above it is clear where the sympathies
of the Ross court lie. Unfortunately, the court did not believe
federal law supported their sympathies.
One of the unfortunate legacies of Ross is the heightened
pressure on attorneys to file a Domestic Relations Order as soon
as possible. This pressure is exacerbated by the Ross view that
an Order filed subsequent to divorce may be subject to
rejection. It is our view that a Domestic Relations Order should
be timely filed with a Plan Administrator. But "timely" is not
well defined. Prudent attorneys will agree that the death of a
titled-spouse subsequent to divorce, but, prior to entry of a
Domestic Relations Order can diminish and perhaps extinguish the
rights of an Alternate Payee. Attorney apprehension increased as
a result of the Ross position regarding Posthumous Orders. This
Practice Aid questions the current status of Ross, in light of a
significant body of post-Ross decisions (federal) dealing with
survivor benefits and a Posthumous Order.
The current status of Ross.
Subsequent to the Ross decision, it is Troyan, Inc.'s
position that a body of federal case law has provided a
foundation for the reversal of Ross. The below cited cases
clearly establish that the Ross court's assumption that no
federal case has allowed a QDRO to be entered after a
participant's death, is not currently supported by the facts. To
buttress our argument that Ross does not represent the current
federal view, readers may reference the following decisions:
Galinski v. Ford Motor, U.S. Dist Ct., 421 F. Supp. 2d 1015,
March 17, 2006
Hogan v. Raytheon, Co., Ct App 8th Cir, 9/12/02 Filed
IBM v. Price, US Dist Ct VT (2nd Cir). 349 F. Supp. 2d 854;
12/13/04 Decided
Natl. City v. Ferrell; 2005 U.S. Dist. LEXIS 36149,8/31/05, U.S.
Dist Ct. in 4th Cir.
Patton v. Denver Post; Ct. App.10th Cir. 4/23/03, 326 F.3d 1148
Tise, U.S. Ct. of App. 10th Cir., 255 F.3d 661, December 6, 2000
Additionally, the Price decision clearly distinguished one of
the key Ross supports, Samaroo (U.S. Ct. of App. 3rd Cir., 193
F.3d 185, September 24, 1999). Further, note that Samaroo
preceded all of the above cited federal decisions. This is not
to imply that Samaroo does not remain relevant within a limited
fact pattern. Recall, the Property Settlement Agreement in
Samaroo, did not contain survivor language. The above referenced
cases deal with an award of survivor benefits to a Former Spouse
and the failure to file a Domestic Relations Order in what a
Plan Administrator deemed a "timely" fashion. We maintain that
when your fact pattern is not a mirror of Samaroo, the
opportunity for qualification of a Posthumous Order is enhanced.
Central to our argument is the requirement that your fact
pattern mirror or be sufficiently close to the facts of any of
the above cited federal cases.
Regarding New Jersey Qualified Domestic Relations Orders, Troyan,
Inc. is of the view that a Posthumous QDRO or Nunc pro tunc QDRO
prepared in New Jersey and based on the above cited federal
decisions need not be subject to the same fate as Ross. Toward
that end Troyan, Inc. will provide support to attorneys
confronting a Ross issue.
Troyan, Inc. is available to conduct New Jersey seminars on the
impact of Files; 428 F.3d 478 and Ross based on the current
status of Federal Law. The level of ours seminars is determined
by your stated requirements.
<= Back to Practice Aids
|
