§35.02 Definitions of Terms Within Qdros

• Jurisdiction: Washington

§ 35.02 DEFINITIONS OF TERMS WITHIN QDROS

In a QDRO, the following terms have been given specific meaning under the Code and ERISA:

[1] Accrued Benefit

In a defined benefit plan, the accrued benefit is the benefit the participant has earned as of a specified date as a result of participation in the plan. In a defined contribution plan, the accrued benefit is the participant's account balance as of a specified date. The participant's accrued benefit may also be subject to a vesting schedule that will limit the percent of the participant's accrued benefit that will be "nonforfeitable" or "vested" in accordance with a "vesting schedule" based on years of service with the employer. I.R.C. § 411.

A QDRO may award a percentage of the participant's accrued benefit as of a certain date. If so, in a defined contribution plan, the account balance should include benefits that have "accrued" as of the specified date under the terms of the plan, even though the amounts may not yet be funded. The plan will specify the allocation date of the employer's contributions for the plan year. However, the employer has until the due date of its tax return (plus extensions) to actually deposit the contribution.

[2] Alternate Payee

An alternate payee is "any spouse, former spouse, child or other dependent of a participant who is recognized by a [DRO] as having a right to receive all, or a portion of, the benefits payable under a plan with respect to such participant." I.R.C. § 414(p)(8); 29 U.S.C. § 1056(d)(3)(K). Although the former Defense of Marriage Act (DOMA) created significant ambiguity over the issue of same-sex marriages, and whether they created a "spousal relationship," the U.S. Supreme Court resolved the issue in United States v. Windsor, 570 U.S. 744, 133 S. Ct. 2675, 186 L. Ed. 2d 808 (2013), by declaring that § 3 of DOMA violated the Due Process Clause of the U.S. Constitution. See also Obergefell v. Hodges, 576 U.S. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015), addressing both the Due Process Clause and the Equal Protection Clause in determining that all states must "perform and recognize" same-sex marriages.

In Branco v. UFCW-Northern California Employers Joint Pension Plan, 279 F.3d 1154 (9th Cir. 2002), an order in a dissolution proceeding awarded the participant's former spouse a community property share of the participant's pension benefits. When the former spouse died before the commencement of payments under the plan, the issue arose as to whether the...