VIRGINIA: 

 In the Supreme Court of Virginia held at the Supreme Court 

Building in the City of Richmond, on Thursday, the 26th day of 

February, 2015. 

Kimberley Cowser-Griffin, Executrix 

 of the Estate of David Griffin, Appellant, 

 against Record No. 140350 

 Court of Appeals No. 1177-13-1 

Sandra D.T. Griffin, Appellee. 

 Upon an appeal from a 

judgment rendered by the Court 

of Appeals of Virginia. 

 Upon consideration of the record, briefs, and argument of 

counsel, the Court is of opinion that the Court of Appeals of 

Virginia did not err. 

For the reasons stated in the majority opinion of the Court of 

Appeals in Griffin v. Griffin, 62 Va. App. 736, 753 S.E.2d 574 

(2014), the judgment of the Court of Appeals is affirmed. The 

appellant shall pay to the appellee two hundred and fifty dollars 

damages. 

This order shall be certified to the Court of Appeals of 

Virginia and to the Circuit Court of Sussex County, and shall be 

published in the Virginia Reports. 

 Justice Kelsey took no part in the consideration of this case. 

_______________ 
2

JUSTICE MILLETTE, with whom CHIEF JUSTICE LEMONS and SENIOR JUSTICE 

KOONTZ join, dissenting. 

Because I conclude that ERISA-governed death benefits 

successfully vested in his surviving spouse at David Griffin's 

death, and are therefore not subject to limitation by a posthumously 

entered Qualified Domestic Relations Order (QDRO), I must 

respectfully dissent. 

In 1996, in the course of their original divorce action, David 

and Sandra Griffin entered into a Property Settlement Agreement 

(PSA) in which they agreed to name their children as beneficiaries 

in "401(k) plans and other such plans which would be distributed 

upon the death of either party." This PSA was incorporated into 

their 1998 final divorce decree. 

David Griffin died on May 26, 2012. At the time, he was 

actively employed at Dominion Power with an ERISA-governed Dominion 

Salaried Savings Plan (the Plan), which provides retirement and 

death benefits payable pursuant to ERISA. In this instance, upon 

the death of a Plan participant, the Plan documents provide for a 

lump sum payment to the surviving spouse unless the spouse 

explicitly consents to another beneficiary or unless a QDRO has 

been entered providing for an alternate beneficiary. 

It is undisputed that Mr. Griffin's surviving spouse, Kimberly 

Cowser-Griffin, did not consent to the naming of other 

beneficiaries. It is likewise undisputed that neither the PSA or 

divorce decree met the statutory requirements for a QDRO. For this 

reason, Sandra Griffin now seeks entry of a posthumous QDRO to 

award the Griffin children Plan benefits. 
3

I. 

The majority concludes that nothing prevents posthumous QDROs. 

I agree that posthumous QDROs are at times permissible. Indeed, 

the regulations concerning timing of QDROs promulgated by the Labor 

Relations Board appear to permit posthumous QDROs, stating that a 

QDRO does not fail "solely because of the time at which it is 

issued," and illustrating this rule with an example involving the 

death of a participant. 29 C.F.R. § 2530.206(c)(1); see also 29 

C.F.R. § 2530.206(c)(2) (ex. 1). If Mr. Griffin was unmarried at 

the time of his death with no designated beneficiaries, for 

example, I would agree that a posthumous QDRO would be permissible. 

However, those facts are not before the Court today. 

Mr. Griffin did remarry, and at the time of his death his Plan 

reflected Mrs. Cowser-Griffin as both the named beneficiary and the 

default beneficiary under the Plan. The Plan, for ERISA purposes, 

had no record of anyone other than Mrs. Cowser-Griffin having an 

interest in his benefits. Thus, Mrs. Cowser-Griffin submits that 

at her husband's death she acquired a vested interest in the 

benefits under the Plan as his surviving spouse. At that point, 

the issue before this Court became distinguishable from an issue 

"solely" related to "timing" as set forth in 29 C.F.R. 

§ 2530.206(c). The issue was no longer merely a matter of timing, 

but also one of vested interest. 

It is undisputed that neither Sandra Griffin nor her children 

filed a QDRO with the Plan in the fourteen years between the 1998 

final divorce decree and Mr. Griffin's death. The PSA and final 

divorce decree provided them with rights under state law, but not 

rights that were enforceable under ERISA. For the purposes of 
4

Virginia law, rights vest at the entry of a divorce decree that 

includes a domestic relations order (DRO). See Himes v. Himes, 12 

Va. App. 966, 970, 407 S.E.2d 694, 697 (1991). For the purposes of 

ERISA, however, benefits may only be alienated in the presence of a 

QDRO meeting the provisions set forth in 29 U.S.C. § 1056(d).1

 See

29 U.S.C. § 1144(a) (setting forth ERISA's express preemption 

clause, providing that it "shall supersede any and all State laws 

insofar as they . . . refer to any [covered] employee benefit 

plan"); Hopkins v. AT&T Global Info. Solutions Co., 105 F.3d 153, 

155-57 (4th Cir. 1997) (holding that a QDRO must be entered before 

interests have vested in a subsequent surviving spouse). 

Certainly, the PSA and divorce decree in this case provided an 

interest that could have formed the basis of a subsequent QDRO to 

enforce these rights under ERISA at any time until the death of Mr. 

Griffin. If, at death, the benefits did not vest in Mrs. CowserGriffin, Sandra Griffin could still obtain a QDRO and enforce these 

rights. If, on the other hand, the benefits have vested in Mrs. 

 1

 A DRO is a QDRO if it recognizes an alternate payee's rights 

to "benefits payable with respect to a participant under [an ERISA] 

plan." 29 U.S.C. § 1056(d)(3)(B). It must specify the name and 

mailing address of the alternate payee and the affected plan 

participant, the amount or percentage of the benefits to be paid or 

the means by which that amount will be determined, the number of 

payments or time period to which the order applies, and the plan to 

which the order applies. 29 U.S.C. § 1056(d)(3)(C). It also must 

not violate the restrictions set forth in 29 U.S.C. § 1056(d). An 

alternate payee seeking to establish a DRO as a QDRO must present 

the order to the Plan Administrator, who will timely inform him or 

her whether the DRO is qualified under ERISA. 29 U.S.C. 

§ 1056(d)(3)(G). 
5

Cowser-Griffin, the right to enforce the state domestic relations 

order was cut off at the time of vesting.2

Thus, the issue today is whether the funds vested in Mrs. 

Cowser-Griffin as beneficiary at Mr. Griffin's death. 

II. 

An inquiry to determine the time of vesting must begin with 

the Plan documents: 

ERISA's principal function [is] to protect contractually 

defined benefits. The statutory scheme, we have often 

noted, is built around reliance on the face of written 

plan documents. "Every employee benefit plan shall be 

established and maintained pursuant to a written 

instrument," [29 U.S.C.] § 1102(a)(1), and an 

administrator must act "in accordance with the documents 

and instruments governing the plan" insofar as they accord 

with the statute, [29 U.S.C.] § 1104(a)(1)(D). The plan, 

in short, is at the center of ERISA. 

 2

 It is worth noting that the term "vesting" has a slightly 

more limited scope in its common usage for retirement account 

purposes than the traditional legal definition used in this 

discussion. The Plan documents and 29 U.S.C. § 1055 refer to 

"vesting" and "vested participants," respectively: this usage, 

common to retirement accounts, pertains to the time at which a 

participant obtains a nonforfeitable right to all or part of his or 

her account. See 29 U.S.C. § 1055(h). This vesting essentially 

addresses the rights of the participant vis-à-vis his or her 

employer: the status of a benefit as "vested" under colloquial 

retirement language does not have any bearing on the status of the 

participant's rights versus any third parties, such as spouses or 

children, claiming that benefit. It is thus distinguishable from 

the traditional legal sense, defined as "[h]aving become a 

completed, consummated right for present or future enjoyment; not 

contingent; unconditional; absolute <a vested interest in the 

estate>." Black's Law Dictionary 1794 (10th ed. 2014). 
6

US Airways v. McCutchen, 569 U.S. ___, ___, 133 S.Ct. 1537, 1548 

(2013) (some internal quotation marks and citations omitted). 

Under the heading "Death Benefits," David Griffin's Plan 

states that: 

If you die while employed by Dominion, the entire value of 

your account is distributed to your beneficiary, including 

the value of all Company Matching contributions that 

automatically become vested upon your death. 

Federal law requires that, if you are married when you 

die, your spouse must receive the distribution unless she 

or he approves your choice of another (or an additional) 

beneficiary before your death. Your spouse must agree to 

your choice of that beneficiary by signing the spousal 

consent portion of a Beneficiary Authorization Form 

obtained from ACS. The form must have been completed, 

signed, notarized, and returned to ACS before your 

death.3,4

Based upon the amount in David Griffin's account at the time of 

his death, the Plan also dictated that a payment to a surviving 

spouse would be made in a lump sum payment. 

The Plan documents, in combination with relevant statutes, 

afford the basis for this Court to conclude that the benefits at 

issue became vested in Mrs. Cowser-Griffin at the time of Mr. 

Griffin's death. This result is consistent with the majority of 

 3

 QDROs are mentioned in the Plan as a method of recognizing 

the rights of an alternate payee, but the Plan does not go into 

detail as the requirements are set forth by statute. 

4

 Although David Griffin changed his beneficiaries from his 

children to his wife in violation of the PSA after he remarried, 

had he not done so, Mrs. Cowser-Griffin would still be the 

beneficiary under the Plan pursuant to the requirements of ERISA 

absent a QDRO or Mrs. Cowser-Griffin's notarized consent. 
7

ERISA case law, which treats the retirement or death of a 

participant as a vesting event for the surviving spouse 

beneficiary.5

In Hopkins, 105 F.3d at 154-55, the United States Court of 

Appeals for the Fourth Circuit considered the case of a former 

spouse attempting to garnish her ex-husband's ERISA benefits to 

collect unpaid alimony by means of a QDRO. The ex-husband had 

retired but was still living, and at the time of his retirement had 

been remarried. The first wife sought a QDRO to garnish two kinds 

of ERISA benefits: pension benefits to the participant and 

surviving spouse benefits. 

The Fourth Circuit was the first to examine the issue of when 

vesting occurs for an ERISA beneficiary of surviving spouse 

benefits. The court concluded that vesting of surviving spouse 

benefits occurs at retirement, and for this reason the surviving 

spouse benefits could not be subject to a QDRO. Id. at 156; accord

Samaroo v. Samaroo, 193 F.3d 185, 190 (3d Cir. 1999). 

The Fourth Circuit relied on the general finality of surviving 

spouse benefits in ERISA at the time of retirement to conclude that 

the benefit vests at retirement in the spouse to whom the 

participant is married at retirement. Hopkins, 105 F.3d at 156-57. 

After retirement, under 29 U.S.C. § 1055, the court stated, such 

benefits cannot be changed even by the participant. Id. at 157. 

In essence, those benefits therefore irrevocably belong to the 

spouse to whom the participant is married at retirement. 

 

5

 Whether the vesting event is retirement or death depends on 

the type of benefits involved and whether the participant passed 
8

Unlike the instant case, the court in Hopkins evaluated an 

annuity subject to 29 U.S.C. § 1055. However, the distinction 

between the participant's and the beneficiary's benefits that drove 

the court's reasoning is also true for Mr. Griffin and his 

surviving spouse. The determinative factor, that the form of the 

benefit becomes fixed at the vesting event, is just as true in this 

instance in which the Plan mandates a lump sum payment to the 

surviving spouse. 

 Additionally, the Fourth Circuit explicitly noted that the 

need for expedient administration or calculation of annuities, 

while not inconsistent with the holding, was not the basis for its 

decision. Hopkins, 105 F.3d at 157, n.7 ("Although ERISA and the 

terms of the plan, and not matters of administrative convenience, 

determine a person's pension rights, it is worth noting that our 

holding does not burden the efficient management of the plan.") In 

short, ERISA's protections of the rights of surviving spouse are 

equally applicable to non-annuitized benefits. 

The United States Court of Appeals for the Ninth Circuit 

similarly held in Carmona v. Carmona, 603 F.3d 1041, 1057-58 (9th 

Cir. 2010), that "a state [domestic relations order] may not create 

an enforceable interest in surviving spouse benefits to an 

alternate payee after a participant's retirement, because 

ordinarily at retirement the surviving spouse's interest 

irrevocably vests." While not identical in their reasoning, 

Hopkins and Carmona share similar rationales, reach the same 

conclusion, and represent the most cohesive guidance as to how to 

approach posthumous QDROs for surviving spouse benefits. The 

 

away during his or her employment. 
9

notion that vesting of surviving spouse benefits occurs at the 

retirement or death of a participant has been adopted by other 

courts and is worth this Court's considered attention today. See

also Rivers v. Central & S.W. Corp., 186 F.3d 681, 683-84 (5th Cir. 

1999) ("[B]enefits irrevocably vested in [the second wife] on the 

date of [her husband's] retirement," and plaintiff's failure to 

obtain a QDRO prior to her ex-husband's retirement forever barred 

her from acquiring any interest in the plan.); Langston v. Wilson 

McShane Corp., 828 N.W.2d 109, 114-16 (Minn. 2013) (reviewing case 

law nationally on the issue and adopting the Hopkins-Carmona

approach). 

 An obvious distinction between the survivor benefits at issue 

in this case and those in the persuasive cases cited above is that 

those cases pertained to benefits that were designated upon 

retirement as surviving spouse benefits. The instant case involves 

a 401(k)-type benefit that would have presumably been paid out to 

the Plan participant had he not died during his employ, but instead 

resulted in death benefits to a surviving spouse. 

 This has, I conclude, no substantive impact on the outcome. 

Had Mr. Griffin retired and lived, his (likely depleting) benefits 

would have continued to be subject to a QDRO, had Sandra Griffin 

decided to seek one. During the course of his life, Mr. Griffin 

could perpetually be bound to abide by his divorce decree by means 

of a QDRO. Yet his death during his employ altered those benefits 

into surviving spouse benefits, which under the preemptive powers 

of ERISA made them the irrevocable property of a beneficiary who 

was not a party to the final divorce decree. Sandra Griffin has no 
10

power to enforce a QDRO against Mrs. Cowser-Griffin: she was not a 

party to the original divorce proceedings. 

The very provision that excepts the benefit at issue from 29 

U.S.C. § 1055 does so based on the fact that it is fully payable at 

death to the surviving spouse in a lump sum amount: it is a 

surviving spouse benefit. 29 U.S.C. § 1055(b)(1)(C). The same 

mandates protecting the surviving spouse that form the 

irrevocability of the benefits in Carmona and Hopkins at retirement 

apply to this benefit at the time of the participant's death. 

III. 

The majority opinion of the Court of Appeals, the reasoning of 

which is affirmed today, begins its analysis setting forth the 

reasons that the benefits at issue are excepted from 29 U.S.C. 

§ 1055. That opinion, in fact, devotes nearly five pages of 

analysis to this undisputed point; the benefits in this case 

clearly fall under the 29 U.S.C. § 1055(b)(1)(C) exception. 

The majority takes such pains to distinguish the case at bar 

from the statute solely to convince this Court to ignore the 

guidance by the High Court of our nation in Boggs v. Boggs, 520 

U.S. 833 (1997), addressing Congressional intent to protect the 

rights of surviving spouses: 

[T]he Retirement Equity Act of 1984 (REA), Pub. L. 98-397, 

98 Stat. 1426, enlarged ERISA's protection of surviving 

spouses in significant respects. Before REA, ERISA only 

required that pension plans, if they provided for the 

payment of benefits in the form of an annuity, offer a 

qualified joint and survivor annuity as an option entirely 

within a participant's discretion. REA modified ERISA to 

permit participants to designate a beneficiary for the 

survivor's annuity, other than the nonparticipant spouse, 

only when the spouse agrees. Congress' concern for 
11

surviving spouses is also evident from the expansive 

coverage of § 1055, as amended by REA. Section 1055's 

requirements, as a general matter, apply to all 

"individual account plans" and "defined benefit plans." 

The terms are defined, for § 1055 purposes, so that all 

pension plans fall within those two categories. While 

some individual account plans escape § 1055's surviving 

spouse annuity requirements under certain conditions, 

Congress still protects the interests of the surviving 

spouse by requiring those plans to pay the spouse the 

nonforfeitable accrued benefits, reduced by certain 

security interests, in a lump-sum payment. 

Id. at 843 (emphasis added)(internal citations omitted). 

 The final sentence refers, of course, to the conditions of the 

instant case. The majority emphasizes that this sentence is dicta 

because Boggs pertained to an annuity covered by 29 U.S.C. § 1055. 

 Whether the statement is dicta does not make the analysis any 

less accurate. REA did offer a comprehensive scheme to strengthen 

protections for surviving spouses under 29 U.S.C. § 1055, and the 

few individual accounts excepted from 29 U.S.C. § 1055 are still 

accorded surviving spouse protections by the provisions of this 

section requiring that surviving spouses be the named beneficiary 

or consent to an alternate payee. See 29 U.S.C. § 1055(b)(1)(C). 

While nothing stated in Boggs might have the precedential force to 

dictate this Court's decision today, we are nonetheless considering 

an issue of federal law upon which the Supreme Court of the United 

States has seen fit to expound. This Court should not lightly 

dismiss that exposition: Congress created a comprehensive 

statutory structure to protect the rights of surviving spouses. 

The systemic policy in ERISA that protects surviving spouses 
12

applies equally to lump sum payments to surviving spouses excepted 

from 29 U.S.C. § 1055. 

 In light of the consensus that annuity plans vest in 

beneficiaries at the retirement or death of the participant, in the 

absence of a credible reason to treat lump sum payment plans 

differently for the purposes of vesting, and bearing in mind that 

ERISA is structured with a policy preference toward protecting the 

interests of the surviving spouse, I conclude that Mrs. CowserGriffin's benefits vested upon the death of her husband. Upon 

vesting, it became impossible for Sandra Griffin to obtain entry of 

a Qualified Domestic Relations Order. 

 A Copy, 

 Teste: 

 

 Patricia L. Harrington, Clerk