In Kazel v Kazel, 3 N.Y.3d 331, 819 N.E.2d 1036, 786 N.Y.S.2d 420 (2004) the Court of Appeals held that a judgment of divorce and qualified domestic relations order (QDRO) awarding an interest in the husband's pension plan do not automatically include preretirement death benefits available under the plan. If the intent is to distribute such benefits, that should be separately, and explicitly, stated.

The parties 1991 divorce judgment distributed the marital property by, among other things, dividing the husband's pension plan between the parties pursuant to the equitable distribution formula established in Majauskas v Majauskas (61 NY2d 481 [1984]). The matrimonial court entered a QDRO directing that plaintiff wife begin to receive a fixed percentage of her former husband's monthly allowance either at such time as he "has retired from and is actually receiving a monthly allowance from his . . .

Pension Plan" or, at plaintiff's option, "after the earlier to occur of the first date for payments allowed under the plan or after [he] reaches the earliest retirement age under the Plan."

The husband died in 2001 before reaching retirement age, and never received any payments under the plan. Following his death, plaintiff sought to share with decedent's widow in preretirement death benefits payable under decedent's pension plan. Because the QDRO, by its plain terms, granted plaintiff an interest only in decedent's retirement annuity, and not in his death benefits, the plan administrator denied plaintiff any share of those benefits. Plaintiff sought to modify or supplement the QDRO to award her a share of such benefits. Supreme Court denied her motion, concluding that plaintiff had failed to establish that the intent of the underlying divorce decree had been to award her survivor benefits. The Court of Appeals noted that Employee Retirement Income Security Act of 1974 (29 USC 1001 et seq.) (ERISA) and the Internal Revenue Code of 1986 (IRC) require all pension plans to provide survivor benefits to a participant's surviving spouse (see ERISA [29 USC] 1055 [a]; Internal Revenue Code [26 USC] 401 [a] [11]; 417). Pursuant to a divorce, however, a QDRO can provide that a former spouse be treated as a surviving spouse--to the exclusion of the actually surviving spouse if, as here, the decedent had remarried--for purposes of ERISA and the joint and survivor rules of the IRC (see ERISA [29 USC] 1056 [d] [3] [F]; Internal Revenue Code [26 USC] 401 [a] [11]; 417, 414 [p] [5] [A]). Thus, a former spouse can overcome the right of an actually surviving spouse to receive a survivor annuity only if specifically awarded such benefits by the matrimonial court. Further, such an award must be reflected in a QDRO, evidenced by clear language designating the former spouse as the surviving spouse for purposes of the survivor benefits. The QDRO must reflect the intent of the underlying judgment of divorce, and must comply with its terms.