Private pension: Widows v Orphans

iguana

Has anyone any idea about what way entitlements work when someone dies, having a pension with provision for widows and orphans, but they were legally separated from their wife and had a child with a new partner? My uncle died last week, leaving his partner with a toddler. My family are concerned about my young cousin and would like to see as much of the money as possible go to him. My uncle wasn't in great condition on the lead up to his death, which was however unexpected, so we don't know what specific provisions he'd made for this eventuality.

coylemj

If it's an occupational pension from a company then the trustees of the scheme may have discretion as to who gets the widow's and orphans money. It won't affect the total of what they pay out but they may be able to apportion some of the money to your cousin.

I did pension trustee training a few years back and discovered that one of the areas where the trustees can make actual decisions is in this type of situation where there are dependants other than the actual widow and children of the deceased. The trustees of my company's scheme had the discretion to redirect some or all of the widow's and orphans pension to a new partner and/or the children of the relationship.

Write to the trustees of the scheme, outline the economic situation and ask them to make provision for your cousin. They probably only meet once a month or so so don't expect a quick turnaround.

If however by 'private' you mean that it was a solo pension taken out by your uncle with a financial institution then the likelihood is that he was asked to nominate the beneficiaries and the bank or insurance company will not vary the terms of his wishes.

Kennie1

If it was a private pension that your uncle had, the value of the fund would be paid out to his estate in the vast majority of cases. If it is an occupational pension the child from the new relationship will have a rite to claim his/her share of the pension, the exact amount varies from scheme to scheme and is usually wrote into the trust deed/rules of the pension scheme so they will have to check his annual benefit statement or write to the trustees.

As for the legal seperation; If your uncle had a divorce there would have probably been a "Pensions ajustment order" made, which would have seen his ex getting some sort of benefit from any kind of pension he may have had but if he only had a legal serpartation his ex would have a rite to claim to his private pension or occ pension which ever may be the case. Hope this helps!

coylemj

Kennie1 wrote: »

If it was a private pension that your uncle had, the value of the fund would be paid out to his estate in the vast majority of cases.

The OP mentioned that the pension has a 'Widows and Orphans' provision, this does not form part of a person's estate as the deeds of the pension fund would state that the widows and orphans pension is not an asset devolving on death so it cannot be bequethed in a will. Thus it cannot be paid out to his estate and neither can any provision in a person's will have any effect on who get the pension.

If there was no provision in the fund for Widows and Orphans (which could apply if it was a completely private fund with a bank or insurance company) then I agree that the money would devolve to the estate but not where there is a widows and orphans provision.

Kennie1 wrote: »

If it is an occupational pension the child from the new relationship will have a rite to claim his/her share of the pension, the exact amount varies from scheme to scheme and is usually wrote into the trust deed/rules of the pension scheme so they will have to check his annual benefit statement or write to the trustees.

Not true, there are no absolute rules in the trust deeds precisely because it is not possible to legislate for every possible situation so the trustees are given the discretion as to how the pension is split up. For example, the father could leave a bundle of money to the child of the new relationship in which case the trustees might decide to give that child none of the pension.

Kennie1

The OP had Private Pension mentioned in the subject field and that is why I said that the value of the pension fund would be paid out to the estate. As private pensions dont usually have WaO benefits the child would have a rite to claim this if there was no will made. Perhaps I was not clear enough in my previous post, what I meant was that the level of benefit that can be made on a WaO pension is usually 50% of the original members pension and by pension I mean the monthly payment from scheme and not the pension fund value so the child would have a rite to claim through the courts if need be (that is if the trustees rejected the childs claim).

Trustees have the discretion to award the spouses part of a pension to children in certain cases as per trust rules provided that the scheme wording states dependants rather than spouse and children. My understanding is that the trustees award benefits equally to each child unless there is a court order that states differently, and if the trustees were to try and define if each child was finanically independant it would hold up the payment of benefits and thus leaving the trustees open to litagation. Now I am open to correction on this subject as I have not undergone trustee training but have read the updated trustee hand book.

iguana

Hi, thanks for the info so far. Just to clear things up, it was his company pension rather than one he had set up separately. He has no children from his marriage, which "ended" about 7 years ago. He died late on the 29th, so I guess that was about 50 hours too soon for his partner to have any claim of her own? He was already claiming his pension due to being pensioned early due to his health (for a little over a year). I don't think there can be any argument that his son, who he always lived with, was a dependant. He was also partially supporting his partner's two sons from a previous relationship.

Afaik, but I'm not sure, the marriage was a clean break financially, ie he wasn't supporting her and he got nothing from the sale of their house despite it being in positive equity. Previous to their marriage breakdown he fully supported her as she immediately stopped working upon their marriage, which may muddy things somewhat?

My family is most concerned about my young cousin and would obviously like him to get as much of the money as possible. Either in trust or for his mother to receive the money each month, or a bit of both. We know that if he had made a will, which as far as we know he didn't, he would also have been happy for his "stepsons" to benefit.

coylemj

If it's a company pension then the trustees have total and absolute discretion over who gets the widows and orphans pension, despite what Kennie1 said above and you can ignore what he said about court orders, the courts have no jurisdiction whatsoever because the deeds of the pension trust will say that the trustees alone decide who gets the money, end of story.

Kennie1

coylemj wrote: »

If it's a company pension then the trustees have total and absolute discretion over who gets the widows and orphans pension, despite what Kennie1 said above and you can ignore what he said about court orders, the courts have no jurisdiction whatsoever because the deeds of the pension trust will say that the trustees alone decide who gets the money, end of story.

What are you on about? The courts have jurisdiction over the trustees, and can order the trustees to make payments to the children by way of a pensions ajustment order provided the guardian of the said child seeks a pension ajustment order. This link should clear the matter up! http://www.pensionsboard.ie/en/Publications/Information_Booklets/A_brief_guide_to_the_pension_provision_of_the_Family_Law_Acts.pdf

Kennie1

iguana wrote: »

He died late on the 29th, so I guess that was about 50 hours too soon for his partner to have any claim of her own? He was already claiming his pension due to being pensioned early due to his health (for a little over a year). I don't think there can be any argument that his son, who he always lived with, was a dependant. He was also partially supporting his partner's two sons from a previous relationship.

The civil partnership act was passed alright in late 2010 but was not to be invoked into law until the Social Welfare and Finance Act was to be passed in 2011. Now the Social welfare act was passed in late December 2010 but the finance Act is still to be passed so I do not know where this would leave his partner with respect to a claim to a spouse's pension??? It may be worth noting that a couple must have been cohabiting for a period of 5 years at least or for period of 2 years if they have a child together. There are other rules for couples to comply with if they did not have a judicial separation or divorse. This is not my area but maybe another forum (perhaps legal) may be able to give you more information on whether his partner would have a right to claim a spouse's pension as the act and social welfare act has been passed but not the finance act.

kaiser sauze

Iguana, please ignore every word uttered by 'coylemj' in this thread, he is beyond confused on the subject. I sincerely hope he has not added to yours.

It is the trustees that will be dealt with, however, it should be the executor of the deceased's will who carries out this obligation.

coylemj

Kennie1, my apologies for my misguided statements, the trustee training that I did never drew our attention to the power of the courts to issue an order deciding what happened to the widows and orphans pension and before you ask, the training I did was not back in the pre-divorce days, it was about 4 years ago and done with a reputable pensions consultancy firm.

I've seen pension adjustment orders for divorce cases, of course the courts can rule.
Sorry iguana but I wouldn't know in this case without seeing the trust deed myself. some defined benefit schemes make an additional allowance for a smaller dependent's pension as well as spouses'. If they're only separated she may get a spouses' pension