FACT SHEET

RIGHTS OF SURVIVING SPOUSES

 INTRODUCTION

As a widow or widower, you may have the right to part of your spouse's pension. The money you are entitled to receive is called a survivor's benefit. Whether or not you are eligible to receive a survivor's pension depends on each of these factors:

The following information should help clarify many of your pension rights as a surviving spouse.

 WHERE DID YOUR SPOUSE WORK?

Was your spouse a member of a pension plan sponsored by a private employer?

Yes: Then the laws discussed in the following sections may apply to you and your pension rights.

No: Then the following information does not apply to you.

If you are unsure whether the plan is a private plan, here's a short list of people who are not members of those plans:

WHEN DID YOUR SPOUSE DIE?

The federal pension law, the Employee Retirement Income Security Act (ERISA), requires private pension plans to provide benefits to surviving spouses. However, until the Retirement Equity Act (REA) was signed on August 23, 1984, employees could choose not to receive the joint and survivor annuity without notifying the spouse. If your spouse died before this date, the spouse may have chosen a benefit that would be paid only while he or she was alive, and there would be no survivor benefit. If your spouse was working and died on or after August 23, 1984 but before January 1, 1985, you may have a right to a special survivor benefit.

WHEN DID YOUR SPOUSE RETIRE?

BEFORE 1985: Generally, the REA's survivor's benefit waiver provisions do not apply to plan years starting before December 31, 1984.

BEGINNING IN 1985: Generally, an employee could no longer give up or "waive" his or her spouse's rights to a survivor's benefit unless the spouse agreed by signing a written form.'

DID YOU GIVE UP YOUR RIGHTS TO A SURVIVOR'S BENEFIT?

The law provides that an employee may give up or "waive" survivor's benefits, but only if the spouse agrees to this in writing. The pension plan administrator must provide the employee with a special form that explains in clear language the effect of the waiver, called a "spousal consent." The waiver form must be challenged if the survivor misunderstood the form because it was not clear, or if it was signed under pressure.

A spouse's consent is not required if the spouse cannot be located, the employee is legally separated or has been abandoned by the spouse and the employee has a court order that confirms this, or the spouse is legally incompetent and his or her guardian consents.

WHAT IF THE COUPLE IS DIVORCED AT THE TIME OF THE EMPLOYEE'S DEATH?

A divorced spouse may receive survivor's benefits as part of the divorce settlement. Once you are divorced, you will probably lose whatever survivor's pension protection you may have had while married, unless your special court order, a Qualified Domestic Relations Order (QDRO), specifically provides for a survivor's pension.

One way for the court order to provide a survivor's pension is for the order to say that the former spouse is to be treated as a surviving spouse. This would mean that you would receive the same survivor's pension that you would have received had you remained married -- typically an amount equal to fifty percent of the benefit your husband or wife was receiving. 

 

QUESTIONS & ANSWERS

Q: WHAT IS A SURVIVOR'S BENEFIT/WIDOW'S PENSION?

The federal pension law, the Employee Retirement Income Security Act (ERISA), requires private pension plans to provide a pension to a worker's surviving husband or wife if the employee earned a benefit. Since Congress passed the Retirement Equity Act in 1984, the husband's or wife's survivor pension can only be given up with his or her written permission.

Q: WHERE DID YOUR SPOUSE WORK?

ERISA, the private pension law, only applies to pension plans for employees of private employers. If your spouse worked for a state or local government, then you must find out what that state's law requires. If your spouse worked for the federal government, then you must find out the special rules that apply to federal workers. If your spouse worked for a church employer, then you must find out the special rules that apply to church workers.

Q: WHEN DID YOUR SPOUSE RETIRE?

The rules on survivor pensions apply to an employee who is entitled to a pension benefit and was working under a private pension plan in 1985 or after. Generally, as long as your spouse was working after the law went into effect, he or she would need your signature to give up or "waive" survivor's benefits. If your spouse retired or died before 1985, he or she could have waived your survivor's benefits without your permission.

Q: WHAT IS "SPOUSAL CONSENT?"

If your spouse wants you to give up your survivor's benefit, you must sign a clearly written spousal consent form provided by the pension plan stating that you do not want the surviving spouse pension.

Q: WHEN WILL YOU RECEIVE YOUR SURVIVOR'S BENEFIT?

If your spouse dies after retirement, you should start receiving benefit payments immediately. If your spouse dies before retirement, then the plan can start making payments as soon as the date upon which your spouse would have reached early retirement age. You have a choice, however, to wait until your spouse would have reached the plan's definition of normal retirement age, in order to receive a full retirement benefit instead of the smaller early retirement benefit.

Q: WHAT HAPPENS IN CASE OF DIVORCE?

If you are a divorced spouse, you may receive survivor rights if that is provided for as part of the division of pension benefits during the divorce proceedings. See the attached fact sheet for more information.