If your ex-husband dies, you still receive his pension only if your divorce awarded you a share of it and the correct court order was filed with the pension plan naming you as the survivor beneficiary. A divorce decree by itself is not enough. Social Security survivor benefits run on a separate track and may be available to you even without any court order dividing the pension.
What the Pension Plan Needs on File
Pension plans pay only what their own records say to pay. For a private employer’s plan governed by the Employee Retirement Income Security Act of 1974, that record is a Qualified Domestic Relations Order (QDRO). A QDRO is a court order directing the plan to pay a portion of a participant’s benefits to an alternate payee, such as a former spouse.1U.S. Department of Labor. Qualified Domestic Relations Orders under ERISA: A Practical Guide to Dividing Retirement Benefits
Your decree may promise you half of his pension, but without a valid QDRO on file the plan administrator cannot legally pay you anything. The plan can only pay according to its written terms, and those terms recognize you only when a qualifying court order says so.1U.S. Department of Labor. Qualified Domestic Relations Orders under ERISA: A Practical Guide to Dividing Retirement Benefits
The single most important piece of a QDRO, for the question of whether payments continue after your ex-husband’s death, is the survivor annuity designation. A properly drafted QDRO specifies the dollar amount or percentage assigned to you, the number of payments or time period, and whether you are entitled to a survivor annuity.2Internal Revenue Service. Retirement Topics – QDRO: Qualified Domestic Relations Order If the order names you as the survivor annuitant, payments continue to you after he dies. If the order is silent on survivor benefits, you may have no continuing right once he passes.
This matters even more if your ex-husband remarried. His new spouse ordinarily has a legal right to a survivor annuity under federal law. When the QDRO explicitly assigns survivor benefits to you, those benefits are yours regardless of the later marriage. The Department of Labor recommends that both the divorce decree and the QDRO clearly state that survivor benefits go to the alternate payee and not to a new spouse or anyone else who would otherwise receive them under the plan.1U.S. Department of Labor. Qualified Domestic Relations Orders under ERISA: A Practical Guide to Dividing Retirement Benefits
If No Court Order Was Ever Filed
This is the scenario that causes the most financial harm. If your divorce decree says you’re entitled to a share of the pension but no QDRO or equivalent order was ever submitted to the plan, you may be shut out entirely when your ex-husband dies. The administrator can only follow what’s on file.
There is a narrow path if the court order was obtained during your ex-husband’s lifetime but simply wasn’t delivered to the plan before he died. At least one federal court has held that a plan must honor a valid domestic relations order issued while the participant was alive, even if the plan didn’t receive it until after death. That outcome is not guaranteed across all courts or all plans, and chasing it after the fact means legal fees and uncertainty.
If you divorced years ago and never obtained a QDRO, act now, while your ex-husband is still living. An attorney who handles pension division can draft the order and get it filed. Waiting is the single biggest mistake in this area of law, and it’s the one that’s hardest to fix later.
How the Rules Differ by Pension Type
Private Employer Pensions
These are the plans ERISA governs, and the QDRO is the controlling document. Everything in the section above applies here.
Federal Civilian Pensions
The Civil Service Retirement System (CSRS) and the Federal Employees Retirement System (FERS) don’t use QDROs. The Office of Personnel Management requires a Court Order Acceptable for Processing (COAP). The purpose is the same, but the formatting rules differ and the order must meet OPM’s specific guidelines.
Under CSRS, a former spouse is entitled to a survivor annuity if the court order or divorce decree expressly provides for it.3Office of the Law Revision Counsel. 5 USC 8341 – Survivor Annuities FERS has a parallel provision at 5 U.S.C. § 8445. The maximum former-spouse survivor annuity is 55% of the employee’s annuity under CSRS and 50% under FERS.4eCFR. Appendix A to Subpart I of Part 838, Title 5 – Recommended Language for Court Orders Awarding Former Spouse Survivor Annuities
If you were enrolled in the Federal Employees Health Benefits program as a former spouse, your coverage after his death depends on whether a survivor annuity is payable. When a qualifying order entitles you to a survivor annuity, your FEHB enrollment continues. If no survivor annuity is payable, your FEHB enrollment terminates, with a temporary window to convert to an individual policy.5eCFR. Subpart H – Benefits for Former Spouses
Military Pensions
Military retired pay can be divided as marital property under the Uniformed Services Former Spouses’ Protection Act. A court order allows the Defense Finance and Accounting Service (DFAS) to send your share of retired pay directly to you.6Office of the Law Revision Counsel. 10 USC 1408 – Payment of Retired or Retainer Pay in Compliance With Court Orders Those payments stop when your ex-husband dies.
For income to continue after his death, you need coverage under the Survivor Benefit Plan (SBP). A former spouse can be named as the SBP beneficiary through a court order or, if the service member failed to comply, through a “deemed election” request sent to DFAS. The deemed election must reach DFAS within one year of the date of the court order. Miss that deadline and it cannot be honored.
State and Local Government Pensions
Plans covering teachers, police officers, firefighters, and other public employees are generally not governed by ERISA and don’t follow the federal QDRO rules. Each state sets its own process. Some use a domestic relations order similar to a QDRO; others require plan-specific forms. Contact that pension system’s administrative office directly to learn what it needs. The core principle holds: without a qualifying court order on file, the plan won’t recognize your claim.
Social Security Survivor Benefits
Even if the pension plan owes you nothing, Social Security may. As a surviving divorced spouse, you can collect survivor benefits based on your ex-husband’s earnings record if your marriage lasted at least 10 years. You can receive up to 100% of what he was entitled to once you reach full retirement age for survivor benefits, which falls between 66 and 67 depending on your birth year. Claim earlier, starting as young as 60, and payments begin at 71.5% of his benefit, increasing the longer you wait.
You must generally be unmarried, but if you remarried after age 60 you can still collect on his record.7Social Security Administration. Survivors Benefits Your own Social Security benefit doesn’t disqualify you; you’ll receive whichever amount is higher, not both combined.
Social Security does not require a QDRO or any special court order. To apply, contact SSA at 1-800-772-1213 or visit a local office. Bring your ex-husband’s death certificate, your final divorce decree, your birth certificate, and your marriage certificate. SSA will help you obtain anything missing.8Social Security Administration. Information You Need to Apply for Spouse’s or Surviving Spouse’s Benefits
How Remarriage Can End Your Benefits
Remarrying can cost you survivor benefits. The rules depend on when you remarry and what type of benefit is involved.
- Social Security: Remarry before age 60 and you generally lose eligibility for survivor benefits based on your deceased ex-husband’s record. Remarry at 60 or older and your eligibility is unaffected.7Social Security Administration. Survivors Benefits
- Federal civilian pensions (FERS/CSRS): Remarry before age 55 and your former-spouse survivor annuity terminates permanently. An annulment of the new marriage does not restore it.9eCFR. Subpart C – Current and Former Spouse Benefits
- Military SBP: Remarrying before age 55 suspends your SBP payments. If that later marriage ends through divorce, annulment, or death, eligibility is reinstated effective the first day of the month the marriage ends. Former spouses under 55 must verify marital status annually.10Defense Finance and Accounting Service. Fall 2025 SBP Newsletter – How Remarriage Before Age 55 Affects SBP Eligibility
- Private ERISA pensions: Rules vary by plan. The QDRO itself determines your rights, and most plans won’t terminate benefits assigned through a valid QDRO based on your marital status alone. Check your plan’s specific terms.
The 55 and 60 thresholds are worth memorizing. If you’re considering remarriage and these benefits represent significant income, the timing can mean the difference between keeping and losing thousands of dollars a year.
How the Payments Are Taxed
Pension survivor benefits are generally taxable income. A survivor annuity from a federal retirement plan is fully or partly taxable depending on whether the employee’s after-tax contributions have been fully recovered. Once that tax-free portion is recovered, all subsequent payments are fully taxable.11Internal Revenue Service. Tax Guide to U.S. Civil Service Retirement Benefits You’ll receive a Form 1099-R by January 31 each year showing the total payments and the taxable amount.
For a private pension, a former spouse who receives payments through a QDRO reports that income as if she were the plan participant, filing it on her own return rather than as income attributed to the ex-husband.2Internal Revenue Service. Retirement Topics – QDRO: Qualified Domestic Relations Order A QDRO distribution can also be rolled over into your own IRA, deferring tax until you withdraw the funds later.
How to Claim What You’re Owed
The claims process varies by pension type, but the first step is always the same: identify who administers the plan and contact them directly.
- Private employer pensions: Contact the employer’s HR department or the plan administrator listed on the Summary Plan Description from your divorce.
- Federal civilian pensions: Contact the Office of Personnel Management. Survivors should submit a death certificate, marriage certificate, birth certificates of eligible children, and a certified copy of any divorce decree. Under CSRS, include property settlement agreements dated on or after May 7, 1985.12U.S. Office of Personnel Management. How Do My Survivors Apply for Benefits
- Military pensions: Contact DFAS and provide your court order, death certificate, and divorce decree.
- Social Security: Apply online, by phone at 1-800-772-1213, or at a local office.8Social Security Administration. Information You Need to Apply for Spouse’s or Surviving Spouse’s Benefits
Keep certified copies of your divorce decree and any QDRO or court order dividing benefits. These are your proof of entitlement, and replacing them after the fact adds delays. Plan administrator reviews can take weeks to several months, and you may be asked for additional documentation along the way. Benefits typically start according to the terms of the court order once the claim is approved, and some plans allow retroactive payments to the date of the participant’s death.