Posthumous QDRO Found to Still be Valid

September 15, 2005 ( - A West Virginia federal judge has awarded a dead participant's ex-wife benefits even though the couple's qualified domestic relations order (QDRO) was not approved by a state judge until after the participant passed away.

US District Judge Irene Keeley of the US District Court for the Northern District of West Virginia issued the decision in a case involving Forrest Ferrell, a former employee of the National City Bank, and his ex-wife Barbara, according to a BNA report. As part of the couple’s January 2002 divorce, a state judge awarded Barbara Ferrell 100% of Ferrell’s assets in the company’s pension plan. Ms.Ferrell died in July 2003.

In her ruling, Keeley turned aside arguments from the company that a posthumous QDRO can’t be enforced, asserting that the court noted that the QDRO at issue was created long before the participant died and was “only being enforced posthumously.”

She noted that the Ferrell case was the first time the issue has come up in the area covered by the US 4 th Circuit Court of Appeals (Maryland, North Carolina, South Carolina, Virginia, and West Virginia), but appellate courts in the 8 th , 9 th and 10 th Circuits have ruled that such court orders were enforceable even if they were posthumous.

According to Keeley, the sponsor was required to give “full faith and credit” to the QDRO because, although it was not approved until after the participant’s death, it merely restated the rights granted to the ex-wife in the couple’s divorce agreement.

The case is National City Corp. Non-Contributory Retirement Plan v.Ferrell, N.D. W.Va., No. 1:03CV259, 8/31/05.