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Rights to Pension and Survivor Benefits

It is well established that upon a divorce a spouse has a right to a share in their exes' pension.  The "portion of a pension legally or beneficially acquired by either party during marital coverture is subject to equitable distribution." Claffey v. Claffey, 360 N.J. Super. 240, 255 (App. Div. 2003).

Further, "[t]here are three separate methods of effecting an equitable distribution of that portion of a pensioner spouse's interest in a defined-benefit pension plan: (1) a present-value offset distribution; (2) a deferred-distribution; and (3) a partial deferred-distribution award." Claffey at 255.  

If the spouse elects a deferred-distribution, then payments are received when the ex-spouse receives payment, but if the ex-spouse dies before payments are due, the right is lost.  However, for certain pension plans, there exists a right to survivor benefits, which reduces the standard payment but permits continued, albeit reduced, benefits to be paid upon the pensioner's death.

It is imperative that the pension plan rules and procedures are reviewed, therefore, so that it can be determined whether a survivor benefit is available and, if so, can be negotiated into a final agreement.

If you have concerns about ensuring that you receive a full share of your spouse's pension incident to divorce, contact one of our family law attorneys today.

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