OPINION OF THE COURT
In the 1960s, Dr. Robert Silber enrolled in two annuity pension plans with the Teachers Insurance and Annuity Association (TIAA) and the College Retirement Equities Fund (CREF). At the time of his enrollment, Silber designated his then-wife, defendant Barbara A. Silber, primary beneficiary of the TIAA-CREF plans, and his children contingent beneficiaries. Both plan contracts required that changes tо beneficiary designations be made by filing written notice'with TIAA-CREF, at their home office, in a form satisfactory to the plan administrator. Over the ensuing years, Silber several times made changes to his beneficiary designation by using a TIAA-CREF form entitled “Designation of Beneficiary.”
The Silbers divorced in December 1985. The divorce decree required that Barbara A. receive 25% of any TIAA-CREF retirement benefits received during Silber’s lifetime and that he designate her as a 50% beneficiary of his death benefits in the event he died before retirement. In April 1986, Silber filed the required beneficiary designation form with TIAA-CREF naming his ex-wife as 50% beneficiary of his death benefits with his four children and a friend sharing the remaining 50% in varying proportions. Silber made other changes to his beneficiary designation after the divorce, all the while maintaining Barbara A. as a 50% beneficiary of his death benefits, as required by the divorce decree.
*399 In April 1992, Silber married plaintiff Barbara K. Silber. Thereafter, he made two changes to his death benefit beneficiary designation using TIAA-CREF beneficiary designation forms. The final change, signed on June 3, 1993, named both Barbara A. and Barbara K. as 50% beneficiaries, with the four children from the first marriage as contingent beneficiaries.
Silber had not retired by 1998. At the behest of defendant Barbara A. and her lawyer, the parties entered into an agreement creating separаte annuities in Barbara A.’s name, providing her with immediate access to benefit payments. The new annuities were funded with 45% of the accumulations from Silber’s TIAA-CREF pension plans. Approximately $925,000 of the accumulations funded the new annuities. The agreement, which was incorporated into a qualified domestic relations order (QDRO), prоvided:
“3. * * * All ownership rights in the newly issued annuities will belong to Alternate Payee [Barbara A. Silber]. All ownership and interest in the balance of the accumulations in all contracts issued by the Pension Plan [TIAA-CREF] will belong to Participant [Robert Silber]. * * *
“8. This Qualified Domestic Relations Order supersedes all prior orders or judgments of this Court and all prior agreеments of the parties and neither party shall have any further rights against the other either finder any of the prior orders or judgments of this Court or under any of the agreements between them all of which rights and/or obligations arising thereunder have been previously fully executed and satisfied. Any further rights either party has against the other or against thеir respective estates shall arise solely under this Qualified Domestic Relations Order.
“9. Each party expressly waives any rights against the other and the other’s estate and releases the other and the other’s estate from all claims, except for those rights and claims under this Qualified Domestic Relations Order.
“10. Participant’s рresent wife, Barbara K. Silber, has signed this Order as a party and hereby waives any claim she might have to any part of Participant’s Pension Plan that is being assigned to *400 Alternate Payee herein. Barbara A. Silber waives any rights or claims she might presently have against Barbara K. Silber on her estate.”
The agreement was signed by Robert Silber, Barbаra A. Silber and Barbara K. Silber, as well as their respective attorneys. The QDRO was “so ordered” by a justice of the Supreme Court on May 12, 1998. On June 23, it was delivered to the TIAA-CREF plan administrator who acknowledged its receipt and agreed to “comply with all the applicable terms and conditions of said Order.”
In a letter to Silber datеd July 13, TIAA-CREF made reference to the QDRO and stated “[i]f you have not already done so, you may want to change the beneficiaries of your annuity contracts. If you choose to change your beneficiaries, please complete the enclosed change of beneficiary form.” Silber never returned the form to TIAA-CREF, and died on November 3, 1998.
In accordance with the last beneficiary designation, TIAA-CREF distributed 50% of both plans’ death benefits to plaintiff Barbara K. but did not distribute the remaining 50%. Barbara K. then commenced this action, both in her individual capacity and as executrix of her husband’s estate, seeking a declaration that she was entitled to all of thе TIAA-CREF death benefits. Both parties sought summary judgment — Barbara A. on the basis of the June 3, 1993 beneficiary designation, naming her as a 50% beneficiary, and Barbara K. on the ground that Barbara A. waived her right to death benefits in the May 1998 QDRO and that the QDRO itself effected a new beneficiary designation.
Supreme Court granted Barbara A.’s motion, concluding that the language of the QDRO was not sufficiently specific to constitute a waiver. The Appellate Division reversed, following a majority of federal circuits holding that a waiver can be accomplished by an agreement that is explicit, voluntary and made in good faith — as occurred here (
Discussion
The Employee Retirement Incоme Security Act of 1974 (29 USC § 1001
et seq.
[ERISA]) is a comprehensive federal statute “designed to promote the interests of employees and their beneficiaries in employee benefit plans”
(McCoy v Feinman,
A state law is related to plan administration, and thus preempted by ERISA, if the law “has a connection with or reference to such a plan”
(Shaw v Delta Air Lines, Inc.,
Prior to enactment of the Retirement Equity Act of 1984 (Pub L 98-397, 98 US Stat 1426 [REA]), some courts questioned whether strict construction of ERISA’s anti-alienation provision required preemption of court-ordered support obligations insofar as such orders affected ERISA plan administration
(see
29 USC § 1056 [d] [1];
see e.g. American Tel. & Tel. Co. v Merry,
592 F2d 118 [2d Cir 1979]). REA largely settled the debate by providing an exception to the anti-alienation provisions of ERISA through the use of a qualified domestic relations order that meets the requirements of 29 USC § 1056 (d) (3) (B)-(E)
(see
29 USC § 1056 [d] [3] [A]).
1
In part, a QDRO is defined as a domestic relations order “which creates or recognizes the existence of an alternate payee’s right to, or assigns to an alternate рayee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan” (29 USC § 1056 [d] [3] [B] [i] [I]). A QDRO is exempted from ERISA’s preemp
*402
tion provisions and may be used to make dispositions of plan benefits to alternate payees
(see
29 USC § 1144 [b] [7];
Carland v Metropolitan Life Ins. Co.,
935 F2d 1114, 1119-1120 [10th Cir 1991],
cert denied
Barbara A. does not dispute that the QDRO establishing a separate annuity in her favor meets ERISA’s technical requirements for exemption from preemption. She claims, however, that the QDRO failed to create a new beneficiary designation— and indeed, the QDRO does not refer specifically to plan death benefits, nor does it name any individual as a beneficiary. Barbara K., however, claims Bаrbara A. waived her right to be a beneficiary of her ex-husband’s death benefits when she entered into the 1998 QDRO. Unlike ERISA’s authorization of designation of beneficiaries through a QDRO, the statute does not address whether, or how, a party can challenge a designated beneficiary based on a claim of waiver. Further, the federal cоurts disagree as to whether ERISA even authorizes a claim of waiver.
A majority of Federal Circuit Courts of Appeal have concluded, as did the Appellate Division in the present case, that waivers of beneficiary rights are possible under ERISAgoverned plans
(see e.g. Manning v Hayes,
As the Fifth Circuit noted in
Manning v Hayes
(
In opposition to the waiver argument, Barbara A. relies upon
Egelhoff v Egelhoff ex rel. Breiner
(
Only one Circuit Court has unequivocally adopted Barbara A.’s position (see McMillan v Parrott, 913 F2d 310 [6th Cir 1990]). 2 That minority view, known as the “plan document” approach, would not permit any alteration of beneficiaries in an ERISA-governed plan except those that are specifically authorized by the statute. Thus, in the minority’s view, only a plan document, such as a plan-generated change of beneficiary form or a QDRO that meets ERISA requirements and expressly designates a new beneficiary, can change a beneficiary designation, and courts may not apply common-law doctrines such as waiver to override an otherwise valid beneficiary designation.
As the instant case demonstrates, there are sound reasons to maintain the availability of a waiver claim, even in the area of ERISA-governed benefit plans. Strict application of ERISA requirements, while likely serving the ends оf uniformity, may *404 not serve the ends of fairness when it comes to effectuating the clear intent of parties to an agreement. Moreover, the weight of federal authority now favors the view that a named beneficiary may waive its rights as a designated beneficiary through a waiver that meets common-law requirements.
[11 We conclude that a claim of waiver can be asserted against a designated beneficiary if the purported waiver meets certain common-law requirements. In that regard, the federal courts look to the statute itself, as well as state law consistent with the statutory scheme
(see Fox Val. & Vicinity Constr. Workers Pension Fund v Brown,
897 F2d 275, 281;
Clift v Clift,
We agree with the Appellate Division thаt, as a whole, the QDRO agreement effectuated a sufficiently specific waiver of Barbara A.’s rights to death benefits. Besides waiving rights against each other and their respective estates, the parties also agreed, in paragraph 3, that ownership of the newly created annuities would belong to Barbara A. exclusively, while all rights and interests in the remaining accumulations would belong to Silber. In addition, the QDRO states that it supersedes all prior orders, which includes the prior divorce judgment that required designation of Barbara A. as a 50% beneficiary of the death benefits. Any other rights of the parties arise solely under the 1998 QDRO. Finally, the QDRO creates a mutual waiver of claims between Barbara A. and Barbara K. Taken together, the various provisions of this agreement evince an understanding among the parties that the creation of a new annuity in favor of Barbara A., an annuity amounting to 45% of all accumulations — close to one million dollars — supersedes all prior agreements.
Thеre is little question that the agreement was entered into voluntarily by all parties. Barbara A.’s attorney contacted Silber’s representatives with the idea of entering into a new arrangement. The parties had divorced in 1985 and 13 years had elapsed. Silber had remarried and was still working. *405 Barbara A. sought a present distribution rather than wаiting for her ex-husband’s retirement or death. Moreover, as she conceded at a deposition, she did not expect to be a beneficiary of Silber’s pension plans after the creation of her own, separate annuity under the agreement. Finally, all three parties to the QDRO agreement were representеd by counsel and there is no record evidence to indicate that any of them were acting in anything other than good faith.
Application of the tripartite common-law test to the parties’ agreement contained in the 1998 QDRO demonstrates that Barbara A. Silber executed an explicit, voluntary and good faith waiver of аll beneficial interests under her ex-husband’s TIAA-CREF plan. Thus, she waived her right to receive the death benefits upon the filing and acceptance of the QDRO, a plan document, by the plan administrator.
Silber’s four children also appeal the decision of the Appellate Division. The children argue that, in the event their mother, Barbara A., is deemed to have waived her death benefits, they should be entitled to a share of the benefits based on their status as contingent beneficiaries. This position is defeated by the clear language of the TIAA-CREF contracts.
With respect to priority of beneficiaries, the TIAA-CREF plan provisions state that, in order for members оf a contingent class of beneficiaries to receive benefits, there must be no beneficiary living in a prior class. Thus, where there are two named primary beneficiaries, the absence of one such beneficiary through death, or in this case waiver, means the other primary beneficiary succeeds to the benefits as the remaining primary. The contingent beneficiaries do not take unless there is no one left in the primary beneficiary class. Silber’s last two beneficiary designations of May and June 1993, along with an internal TIAA-CREF memorandum, make clear that the children were designated as contingent beneficiaries. Thus, the effect of Barbara A.’s wаiver of her beneficiary designation is to leave Barbara K. as the sole beneficiary.
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Chief Judge Kaye and Judges Smith, Wesley, Rosenblatt, Graffeo and Read concur.
Order affirmed, with costs.
Notes
. 29 USC § 1056 (d) (3) (A) provides, “Paragraph (1) [anti-alienation provision] shall apply to the creation, assignment, or recognition of a right to any benefit payable with respect to a participant pursuant to a domestic relations order, except that paragraph (1) shall not apply if the order is determined to be a qualified domestic relations order. Each pension plan shall provide for the рayment of benefits in accordance with the applicable requirements of any qualified domestic relations order.”
. In
Estate of Altobelli v International Bus. Machs. Corp.
(