Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jan 28, 2011

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If your spouse has a retirement plan and dies without collecting on it, it may be possible for you to collect the benefits s/he would have been entitled to under a survivor benefit plan. This right stems from a regulation in place under ERISA, the Employee Retirement Income Security Act of 1974. ERISA, which is a federal act, states that a pension plan must have something referred to as survivor’s benefits. These survivors’ benefits mean that, should the holder of the pension plan die, the person’s spouse is allowed to receive fully vested benefits from the plan.

Receiving Survivor’s Benefits After Spouse’s Death

It’s also possible to continue receiving the benefits after your spouse has retired, but if he or she dies, provided your spouse has a qualified joint and survivor annuity benefit. Such a benefit provision allows the spouse of a participant to continue receiving benefits if the participant dies after he begins to receive benefits. These benefits are automatic unless the surviving spouse consents in writing to waive the benefit. In other words, if your spouse is retired and receiving benefits, those will continue to arrive after his or her death, but in your name.

ERISA and Surviving Spouse Rights

Most survivors’ benefit clauses are the default on retirement plans under ERISA rules, but you should check your own plan to ensure what is specified. It’s possible for the pension holder to change these stipulations, possibly creating a joint survivors’ benefits clause in which the benefits go to, for example, a spouse and a child. The benefits can also be removed from the spouse and bestowed somewhere else, or directed somewhere else in the case of an unmarried pension holder. Further, not every plan or employer is covered by ERISA so this regulation and/or these provisions may not always apply.

If you are concerned in any way about your pension or your spouses’ pension, it is in your best interests to consult with a lawyer for guidance.