Our artificial intelligence overlords tell us that in America we have a “death-denying culture.” Translation: generally speaking, death is a topic that is presumptively uncomfortable, swept under the rug, and not talked about in this country.
When you draft a separation agreement in a matrimonial matter, you had better sweep the “death-denying” milieu under the rug. Instead, it is critical that matrimonial lawyers who draft separation agreements confront how we are going to address the possibility that one spouse could die after an agreement is signed, but before all its provisions are implemented.
If you ever needed proof of how important it is to get comfortable with the possibility of death when drafting separation agreements, look no further than Justice Joseph H. Lorintz’s recent decision in A.F. v. D.F., 2025 NY Slip Op 50160(U) (Sup. Ct., Nassau Cty., 2025).
In A.F., the parties were married in 1990, and they have three emancipated children. A divorce action was commenced by the wife in 2010 and settled pursuant to a Marital Separation and Property Settlement Agreement (“agreement”) in 2010. The parties were divorced by Judgment in 2010.
The agreement directed the division of the Husband’s pension via a Qualified Domestic Relations Order (“QDRO”). A QDRO was signed simultaneously with the Judgment which directed that the wife (the “Alternate Payee”) would receive survivorship benefits in the event of the husband’s (the “Participant”) death.
In 2011, the New York City Employees’ Retirement System (NYSCERS) sent a letter advising the husband that the “DRO is unacceptable in its current format,” including that the numerator (number of months of retirement credit earned during the marriage) was incorrect.
In 2024—more than a decade after the letter from NYSCERS—the husband filed an Amended Domestic Relations Order that was identical to the 2010 QDRO “except for the deletion of the ordered paragraph directing the [husband] to select a survivorship option.”
The wife filed a motion seeking to enjoin the husband from amending the 2010 QDRO. The husband cross-moved to vacate the 2010 QDRO on the grounds that the agreement did not explicitly grant the wife pension survivorship rights.
According to the wife, her ex-husband had “medical maladies and the inherent safety risks associated with his work made his pension survivor option a focus of the parties’ deliberations, and [] she traded valuable separate property credits to secure her survivorship rights.” The husband argued that the parties never agreed he would select a pension option that provided survivor benefits and that the agreement had “no such requirement.”
The decision explains that if “parties intend to distribute death benefits, they must explicitly state the same in their written agreement, as pension and death benefits are two distinct matters.” Even more emphatic, the decision states that where a “stipulation of settlement does not explicitly distribute pension survivorship benefits, a domestic relations order issued pursuant to the stipulation which provides for post divorce death benefits should be vacated.”
In A.F., the Agreement was “silent with respect to pension survivor benefits”; as a result, the court concluded that “awarding” the wife “post-retirement survivor pension death benefits would constitute improper reformation of the Agreement, to which the parties remain bound.” The Court denied the wife’s motion and granted the husband’s motion seeking an order vacating the 2010 QDRO.
At the risk of causing more agita in this already treacherous practice known as “matrimonial law,” how many separation agreements have you drafted wherein a party’s retirement assets—of any kind—are to be allocated via a QDRO? Hundreds, I am sure.
But how many of those same agreements have you drafted where you also explicitly stated what happens if the “Participant” spouse dies before the QDRO is (a) approved by the plan administrator, (b) signed by a Judge, and (c) entered by the Clerk of Court? Have you explicitly stated that if the “Participant” spouse dies before those events occur, then the “Alternate Payee” spouse is still entitled to the receipt of survivor benefits as if the QDRO had been implemented?
Or have you relied on the terms of the QDRO? In either case, the A.F. decision is yet another reminder that the practice of matrimonial law is a minefield of complexity; to those who believe otherwise, I beg to differ. To whomever is teaching the next CLE on QDROs, please focus our attention on the A.F. decision.
"Divorce, Pensions, and Survivorship Benefits: A Deadly Combination," by Alan Feigenbaum was published in the New York Law Journal on April 25, 2025.
Reprinted with permission from the April 25, 2025, edition of the New York Law Journal © 2025 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.