Nunc Pro Tunc QDROs & Posthumous QDROs

Nunc Pro Tunc QDROs & Posthumous QDROs

We have already written a post about when a QDRO should ideally be completed and filed, but things do not always happen in an ideal way.  Sometimes clients contact QDRO Helper more than a decade after their divorce was finalized.  We even occasionally get contacted by an individual who never obtained a QDRO, but whose former spouse has recently passed away.  This post is about potential options for the division of retirement benefits after the death of a former spouse.


To avoid injustice, California Family Code §2346 grants judges in family law courts discretion to enter an Order or Judgment “nunc pro tunc”, which means that the Order or Judgment relates back in time to when it should have been entered.  With regard to the division of retirement benefits, a nunc pro tunc qualified domestic relations order may be entered after the death of a party before a QDRO was prepared, or even because of one party’s death prior to entry of the judgment of dissolution.


The Ninth Circuit Federal Court (which has jurisdiction in California cases) has not yet specifically addressed the issue of posthumous QDROs.  However, a case from 2000 [Dirs. Guild of Am.-Producer Pension Benefits Plans v. Tise, 234 F.3d 415, amended, 255 F.3d 661 (9th Cir.2000)] has stated that there is “no conceptual reason why a QDRO must be obtained before the plan participant’s benefits become payable on account of his retirement or death”.  QDRO Helper has drafted nunc pro tunc QDROs for divorces which took place in California, which have been approved by California courts, and implemented by retirement plans.

The Eighth and Tenth Circuit courts have also allowed QDROs to be entered after a party’s death and have found that there is no requirement in ERISA or the Internal Revenue Code that a QDRO be completed at a specific time or prior to the participant’s death.  However, the Third Circuit has ruled against posthumous QDROs and has stated that a QDRO must be qualified prior to a plan participant’s death.


The benefits capable of being awarded under a nunc pro tunc QDRO may be limited; and it is always best to complete your QDRO concurrently with your judgment of dissolution.  For example, if your judgment or marital settlement agreement only reserves jurisdiction over the division of retirement benefits, you may not be able to obtain Qualified Pre-Retirement Survivor Annuity benefits under a nunc pro tunc QDRO, particularly if the plan participant remarried prior to death.  If your judgment or settlement agreement did not adequately address the division of retirement benefits, obtaining a posthumous or nunc pro tunc QDRO may be more difficult or may not be an option.


If you have questions about nunc pro tunc QDROs or posthumous QDROs for California, please call QDRO Helper at (619) 786-7376.


DISCLAIMER: Any legal information on this blog has been prepared by QDRO Helper for informational purposes only and should not be construed as legal advice. The material posted on this website is not intended to create, and receipt of it does not constitute, an attorney-client relationship, and readers should not act upon it without seeking professional counsel. Note also that sending an e-mail to QDRO Helper does not create an attorney-client relationship, and none will be formed unless there is an express agreement between the firm and the individual. We strongly advise against sending confidential or privileged information to QDRO Helper until you can establish such a relationship.