Iowa Law Review, Vol. 76, No. 3 (March 1991), pp. 431-502 (reprinted with permission)


While there are pervasive problems with the current ERISA legislation, this Article will focus only on survivor benefits and will concentrate in particular on the short-term marriage provision. This Article will maintain that facial neutrality notwithstanding, the short-term marriage provision is discriminatory in effect, grounded in dubious logic, and unsupportable from a historical perspective. In order to demonstrate this, this Article will delve thoroughly into the historical development of ERISA, with particular emphasis on the survivor benefit provisions. The depth to which this Article plumbs the general development of ERISA is intended to demonstrate the weak historical foundation on which the short-term marriage provision rests and to establish that weaknesses in this law are attributable largely to the tremendous obstacles the reformers had to overcome. These obstacles were so great that it was fortunate there was any reform at all. Indeed, the more far-reaching legislation had to fight for its life at virtually every state of its development. Therefore, only so many battles could be won. Although women had only recently begun to enter the workforce in significant numbers, they were generally considered to be unimportant because of the relatively low-level positions they held. In addition, they were not organized and did not have a strong collective voice. Thus, they were not factored into the original ERISA legislation. It was not until several years later that Congress began to realize the injustice it had foisted upon American women. Yet despite Congress' attempt to rectify the situation with REA, inequities remain. Finally, this Article will examine the development of post-ERISA legislation and its effect on survivor benefits. In particular, the divorce distribution provisions produce some current problems for survivors. The concept of the qualified domestic relations order ("QDRO") was added in 1984 to cure inequities existing because of the anti-alienation provision of ERISA and to clarify the extent to which a court could order retirement benefits divided upon divorce. The intent of the QDRO provisions was to provide greater equity in property distributions upon divorce. In effect, however, they may operate to divest a current spouse and thus place that spouse's financial future in jeopardy, without that spouse's knowledge, and regardless of the length of the current marriage. This Article will address specific problems facing survivors today and will propose a simple and fair solution.