3 N.Y.3d 331
NY
2004

OPINION OF THE COURT

Chief Judge Kaye.

A judgment of divorce and qualified domestic relations order (QDRO) awarding an interest in the husband’s pension plan do not automatically include preretirеment death benefits available under the plan. If the intent is to distribute such benefits, that should be separately, and explicitly, stated.

After 28 years of marriаge, Robert and Sandra Kazel were divorced in 1991. In accordance with a final posttrial judgment distributing the marital property by, among other things, divid *333 ing the husband’s рension plan between the parties pursuant to the equitable distribution formula established in Majauskas v Majauskas (61 NY2d 481 [1984]), 1 the matrimonial court entered a QDRO directing that plaintiff wifе 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 plaintiffs option, “after the earlier to occur of the first date for payments аllowed under the plan or after [he] reaches the earliest retirement age under the Plan.”

Robert Kazel died in 2001 before reaching retiremеnt age, and therefore 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 rеtirement annuity, and not in his death benefits, the plan administrator denied plaintiff any share of those benefits.

Plaintiff, conceding that the QDRO failed to grant her аn interest in her former husband’s death benefits, sought to modify or supplement the QDRO to award her a share of such benefits. Supreme Court denied the motion, concluding that plaintiff had failed to establish that the intent of the underlying divorce ‍​‌‌‌‌​‌‌​‌‌​‌‌‌‌‌​​​‌‌​‌‌​‌​​​‌​‌​‌​‌‌​​‌‌‌‌‌​​‌‍decree had been to award her survivor benefits. The Appellatе Division, one Justice dissenting, affirmed and granted leave to appeal to this Court, certifying the following question: “Was the order of this Court entered Deсember 31, 2003, properly made?” We answer in the affirmative, and therefore affirm.

Discussion

The Employee Retirement Income Security Act of 1974 (29 USC § 1001 et seq.) (ERISA) and the Intеrnal Revenue Code of 1986 (IRC) require all pension plans to provide survivor benefits to a participant’s surviving spouse (see ERISA [29 USC] § 1055 *334 [a]; Internal Revenue Codе [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 аctually 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]). 2 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.

Although plaintiff contends that the рhrase “pension plan,” as contained in the underlying judgment ‍​‌‌‌‌​‌‌​‌‌​‌‌‌‌‌​​​‌‌​‌‌​‌​​​‌​‌​‌​‌‌​​‌‌‌‌‌​​‌‍of divorce, can encompass both retirement annuities and survivor benefits, the law is othеrwise.

In McCoy v Feinman (99 NY2d 295, 303 [2002]), we explained that “Majauskas can govern equitable distribution of preretirement death benefits earned during the marriage, but mere mention of Majauskas does not by itself establish the parties’ intent to allocate those benefits” (emphasis in original). As we stated then and underscore now, pension benefits and death benefits are two distinct mаtters. Both ERISA and the IRC treat them as separate interests, and we therefore hold that reference to a pension plan or pension bеnefits will not be deemed to include death benefits. Indeed, even “a stipulation’s conclusory representation that the parties agreed to allocate to the nonemployee spouse all the benefits available . . . under the applicable section of the Internal Rеvenue Code—which authorizes but does not mandate assignment of survivor benefits (see 26 USC § 414 [p])—does not evince the parties’ intent to distribute each such benefit” (McCoy, 99 NY2d at 303 [internal quotation marks omitted]). Rather, any distribution of survivor benefits should be explicitly stated.

Plaintiff’s attempt to distinguish this case from McCoy is unavailing. There, the stipulation of settlement “clearly *335 expressed the parties’ intention to award plaintiff retirement benefits under the plan. Critically, however, in no way did the stipulation provide ‍​‌‌‌‌​‌‌​‌‌​‌‌‌‌‌​​​‌‌​‌‌​‌​​​‌​‌​‌​‌‌​​‌‌‌‌‌​​‌‍or even suggest that the parties had agreed to allocate to plaintiff preretirement death benefits, and we cannot read the stipulation as if it had” (99 NY2d at 303 [emphasis in original]). Because the stipulation “was not ambiguous and did not cover preretirement death benefits, it did not entitle plaintiff to receive thоse benefits; nor did the judgment, which merely incorporated that stipulation” (id.).

True, McCoy involved a stipulation between the parties, rather than a decree issued after trial. But that distinction is immaterial. Fundamentally, the issue in McCoy was whether a stipulation, silent as to death benefits, could be read to reflect an intеnt to include such benefits. We held that it could not. Similarly, a divorce decree, silent as to death benefits, cannot be read to include them.

Whether the matrimonial court should have, or would have, equitably distributed the preretirement benefits, the fact remains that it did not. 3 In the absence of evidenсe that the death benefits were ever considered by the matrimonial court, we will not infer from silence in the underlying trial record—let alone contrary language in the QDRO—that the intent of the court was other than to provide plaintiff with a share of any benefits actually received by her former husbаnd during his lifetime, or that the matrimonial court’s reference in its amended decision to “pension interests”—which clearly were meant to be divided—included deаth benefits. Although plaintiff would have us presume that death benefits are meant to be included within ‍​‌‌‌‌​‌‌​‌‌​‌‌‌‌‌​​​‌‌​‌‌​‌​​​‌​‌​‌​‌‌​​‌‌‌‌‌​​‌‍a distribution of pension benefits in the absence of an express provision excluding them, the law requires the contrary presumption.

Since the underlying judgment fails to reflect an express intent by the matrimonial court to distribute the death benefits, the QDRO was not, as plaintiff asserts, carelessly drafted, but rather correctly reflects—as it must—the terms of the decreе from which it arises.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

*336 Judges G.B. Smith, Ciрarick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

Order affirmed, etc.

Notes

1

. Majauskas held that vested rights in a noncontributory pension plan are marital property to the extеnt they were acquired between the date of the marriage and the commencement of a matrimonial action, and that the matrimonial сourt may therefore order distribution to one spouse of an equitable portion of that part of the present value of the other spоuse’s pension rights earned during marriage, or may provide that upon maturity of the pension rights the recipient pay a portion of each payment received to the former spouse (see 61 NY2d at 485-486).

2

. Of course, a QDRO can provide that the former spouse receive all or only a portion of the survivor benefits, in which case the benefits would be shared with the actually surviving spouse.

3

. On this record, the failure of the judgment of divorce to distribute prеretirement death benefits is unsurprising. ‍​‌‌‌‌​‌‌​‌‌​‌‌‌‌‌​​​‌‌​‌‌​‌​​​‌​‌​‌​‌‌​​‌‌‌‌‌​​‌‍It appears that no evidence was adduced at trial with respect to any value, or even the existence, of such benefits.