There’s a lot of misinformation floating around about what happens in a divorce and what rights people have regarding pensions and retirement accounts. One mistake people make is to assume that their spouse is the only one with a right to the pension because the account is solely in their name and funded in part by their employer.

However, unless you have a prenuptial agreement that designates the pension as separate property, in most cases, contributions to the pension during your marriage will constitute marital property that should get shared between spouses in the event of a divorce. You shouldn’t wait until your ex begins to draw on the pension to request your share. Instead, you should request the division of the pension as part of the divorce proceedings.

Your rights to a share of the pension end with the divorce

Under the Retirement Equity Act of 1984, individuals who support someone that accumulates a pension during a marriage have a shared interest in that pension and a right to make a claim to it in the event of a divorce. In other words, even though you get a divorce, you have a right to a share of the retirement benefits.

Unfortunately, people often fail to assert that right, meaning that they lose out on their interest in the pension. You should include the pension in your inventory of assets that you provide to the courts and make it clear both to the courts and to your ex that you want your fair share. Once the courts finalize your divorce, you lose your right to ask for a share of the pension.

Your right to the pension can continue after the death of your ex

As a spouse at the time your ex built up the balance in their pension, you made contributions to the household that entitled you to a share of that pension. Just like a spouse receives a pension even if the person who earned the pension dies, so too does a divorced spouse who receives a portion of a pension through a Qualified Domestic Relations Order.

If your spouse dies after they retire, you can continue collecting pension payments when theirs stop. In fact, you can receive pension payments when you qualify for them in the future, even if your ex dies before they ever receive their share of the pension.