Plan Not Compelled to Approve QDRO Granting Survivor Benefits.

Position:BENEFIT LITIGATION - Qualified domestic relations order

The Commonwealth Court of Pennsylvania affirms a lower court decision to deny the plaintiff's request to compel plan approval of a qualified domestic relations order (QDRO) negotiated during a divorce.

The plaintiff is the ex-wife of a participant of a retirement plan sponsored by a municipality. The defendants are the plan participant and the plan.

The plaintiff seeks to compel the plan to approve a proposed QDRO that she negotiated during her divorce from the plan participant. The plan refused to approve the QDRO because it provided for an allocation to the plaintiff of survivor benefits under the plan upon the defendant participant's death. The pension ordinance of the municipality expressly prohibits survivor benefits to ex-spouses. The plaintiff filed a motion to compel in a lower court. The motion was denied, and the plaintiff appeals to this court. On appeal, the plaintiff claims that the lower court erred in refusing to designate her as a surviving spouse and challenges the plan treatment of ex-spouses on constitutional grounds.

The plan refused to honor the QDRO because it contends that a QDRO negotiated between two divorcing spouses cannot alter the amount or form of pension benefits available under the terms of the plan, and this court agrees. Here, the plaintiff is seeking benefits not otherwise provided under the terms of the plan. The pension ordinance of the municipality defines surviving spouse as "a living individual who was legally married to the participant and is married to the participant at the time of the participant's death." The divorce of the plaintiff ex-wife and the defendant participant was finalized and, after that point in time, the plaintiff is no longer legally married to the defendant participant and cannot be a surviving spouse under the plan. In addition, the pension ordinance of the municipality provides that a former spouse of a participant shall not be treated as the spouse or surviving spouse for any purposes under the plan.

Therefore, the lower court did not err in refusing to designate the plaintiff ex-wife as a surviving spouse when the ordinance expressly stated that ex-spouses were not surviving spouses.

In addition, the plaintiff argues that the disparate treatment of ex-spouses and current spouses under the plan violates equal protection. She contends it is irrational that a new spouse married for just one year to the

plan participant would be entitled to greater benefits than an ex-spouse of...

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