Kennedy v. DuPont: Supreme Court Tells Divorce Attorneys "Follow ERISA's Procedures!"1

The US Supreme Court granted certiorari in Kennedy v. Dupont Savings & Investment Plan to decide whether a Qualified Domestic Relations Order (QDRO) is the sole means by which a participant can assign a pension benefit in divorce without violating the anti-alienation clause of the Employee Retirement Income Security Act (ERISA). After hearing oral arguments, the Court expanded its review to the following question: "whether the terms of the limitation or alienation invalidated the act plan, who purported to waive her entitlement by a federal common law waiver embodied in a divorce decree that was not a QDRO." By acknowledging the supremacy of ERISA's plan document rule and making clear the proper method of designating or disclaiming a spousal benefit, the Supreme Court has told divorce attorneys the location of the ERISA "mines," leaving it to the parties' divorce attorneys to either draft a proper QDRO or a proper disclaimer and to remind their clients to update the beneficiary cards.