Washington Law Review


Under the Employee Retirement Income Security Act, retirement benefits cannot be assigned or alienated. In 1984, Congress enacted the Retirement Equity Act (REA) which allowed retirement benefits to be divided between former spouses upon divorce, under a qualified domestic relations order (QDRO). It is unclear whether the restriction on alienation of benefits extended to a transfer of the interests of a nonemployee spouse who predeceases the employee spouse, and if so, whether such a disposition is within the QDRO exception. In a two-to-one decision in Ablamis v. Roper, the Ninth Circuit held that the exception did not extend to such testamentary bequests. Ablamis, however, is contrary to the equitable principles of REA. This Comment critically examines the inequities which Ablamis' interpretation of the QDRO exception creates for nonemployee spouses, and urges Congress to amend ERISA to allow state law to determine whether a nonemployee spouse has an interest in the employee spouse's qualified pension plan that can be disposed of as an asset of the nonemployee spouse's estate.

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