Fourth Circuit Adopts De Novo Review of QDRO Interpretation and Clarifies QJSA Cost Allocation under ERISA: Commentary on David Gasper v. EIDP, Inc.

Fourth Circuit Adopts De Novo Review of QDRO Interpretation and Clarifies QJSA Cost Allocation under ERISA

Commentary on David Gasper v. EIDP, Inc., No. 24‑1959 (4th Cir. Dec. 8, 2025)

I. Introduction

The Fourth Circuit’s published decision in Gasper v. EIDP, Inc. addresses two recurring but often misunderstood intersections between ERISA and domestic-relations law:

  • What standard of review applies when a federal court reviews a plan administrator’s interpretation of a Qualified Domestic Relations Order (QDRO)?
  • How are the “costs” of a Qualified Joint and Survivor Annuity (QJSA) allocated between a participant and an alternate payee under ERISA and a divorce order?

In addition, the court clarifies when ERISA statutory penalties are appropriate for failure to timely provide plan documents under 29 U.S.C. §§ 1024 and 1132(c)(1).

This commentary provides a detailed analysis of the opinion, its legal reasoning, the precedents it relies on, and the practical impact for:

  • ERISA plan administrators and sponsors
  • Family-law and QDRO drafting practitioners
  • Participants and alternate payees in defined benefit pension plans

II. Background and Procedural History

A. Factual Background

  1. The marriage and divorce. David Gasper worked for EIDP, Inc. (formerly E. I. DuPont de Nemours & Co.) and participated in its defined benefit pension plan (“the plan”). After 25 years of marriage, Gasper and his spouse divorced in 2010 in North Carolina. The state family court treated his pension as a marital asset.
  2. The DRO and QDRO. The state court entered a Domestic Relations Order (DRO) incorporating the parties’ agreement. Under ERISA, a DRO becomes a qualified DRO (QDRO) if it meets detailed statutory criteria (29 U.S.C. § 1056(d)(3)). The DRO/QDRO:
    • Identified Gasper as the “Participant” and his former spouse as the “Alternate Payee.”
    • Gave the former spouse:
      • a reduced monthly benefit during Gasper’s life, and
      • a survivor benefit upon his death via a QJSA (surviving spouse annuity).
    • Critically stated: the Alternate Payee’s benefit “may be reduced as necessary to cover the cost of the [surviving spouse annuity] awarded to Alternate Payee.”
    • Stated that the former spouse “shall be treated as a surviving spouse” for purposes of survivor benefits.
  3. Qualification of the DRO as a QDRO (2013). The plan sponsor’s designee, Marsha Cauthen‑Wilson, reviewed the DRO and concluded it met ERISA’s QDRO requirements. Her determination report stated:
    • The order was a QDRO under ERISA.
    • “At the participant’s benefit commencement date, the total monthly benefit will be reduced to cover the cost associated with the [surviving spouse annuity].”
  4. Retirement and benefit dispute (2019). When Gasper became eligible for benefits in 2019, he was told (and elected) a monthly benefit of $3,400 under the QJSA option. He argued his benefit should instead be $3,785.26, asserting that:
    • The QDRO required that the entire “cost” of the survivor annuity be borne by his ex-spouse’s share, not his.
    • Therefore, his own portion should not have been reduced for the QJSA.
  5. Plan administrator’s explanation. In October 2019, the plan administrator explained:
    • The only “cost” of a QJSA is the actuarial reduction needed to convert a single‑life annuity into a joint‑and‑survivor annuity (covering both lifetimes).
    • The plan first applies that actuarial adjustment to the total benefit, and then splits the adjusted amount between Gasper and the Alternate Payee.
    • The plan does not offer any optional form that would shift the actuarial reduction entirely onto the Alternate Payee’s portion.
    • Because ERISA forbids a QDRO from requiring a type or form of benefit not offered by the plan (29 U.S.C. § 1056(d)(3)(D)(i)), the “cost-shifting” language in the DRO could not be enforced and was disregarded when qualifying the order.
  6. Administrative appeals and document requests.
    • Gasper took two administrative appeals, both denied.
    • Beginning in June 2020, he requested plan documents, initially orally and later in writing (July 20, 2020 and thereafter), including:
      • Plan text in effect in April 2013 (when the DRO was qualified).
      • Historical Summary Plan Descriptions (SPDs) and plan amendments.
    • The plan repeatedly sent him the then-current plan documents (2020), and ultimately provided all historical materials during discovery in the federal lawsuit.

B. District Court Proceedings

In 2023, Gasper filed suit under ERISA in the Western District of North Carolina against:

  • EIDP, Inc. (plan sponsor),
  • Corteva, Inc. (which had assumed plan responsibility),
  • The Pension and Retirement Plan, and
  • The Benefit Plans Administrative Committee (plan administrator).

He brought two claims relevant on appeal:

  1. Wrongful denial of benefits under 29 U.S.C. § 1132(a)(1)(B), arguing his monthly benefit was underpaid.
  2. Statutory penalties under 29 U.S.C. § 1132(c)(1) for failure to timely provide documents required by § 1024(b)(4).

The district court granted summary judgment to the defendants, holding:

  • The QDRO unambiguously permitted but did not require that the ex‑spouse’s share bear the QJSA cost.
  • Under deferential review, the plan’s benefit calculation was reasonable.
  • Any delay in producing older documents did not prejudice Gasper, and there was no bad faith; penalties were unwarranted.

Gasper appealed. The Fourth Circuit affirmed in a published opinion by Senior Judge Keenan, joined by Judges Benjamin and Berner.

III. Summary of the Fourth Circuit’s Holding

  1. Standard of review for QDRO interpretation. The Fourth Circuit for the first time squarely holds that:
    • De novo review applies to a plan administrator’s interpretation of a QDRO.
    • The QDRO is a court‑approved contract governed by state contract law; interpreting it does not draw on the plan administrator’s special expertise.
    • However, the plan administrator’s benefit calculations under the plan remain reviewed under an abuse-of-discretion standard where the plan grants discretion.
  2. Interpretation of the QDRO under North Carolina law. Applying North Carolina contract law, the court holds that the QDRO’s provision that the Alternate Payee’s benefit “may be reduced” to cover the QJSA cost:
    • Is unambiguous and permissive, not mandatory.
    • Authorizes, but does not require, allocating the cost to the ex‑spouse’s share.
    • Does not bar the plan from applying the actuarial reduction to the entire benefit and then splitting the reduced benefit.
    Extrinsic evidence of Gasper’s subjective intent (his declaration) was therefore inadmissible.
  3. Nature of the “cost” of a QJSA. The court accepts the plan administrator’s conclusion that:
    • The only “cost” of a QJSA is the actuarial reduction used to convert a single-life annuity to a joint-and-survivor annuity.
    • There is no separate dollar “charge” that can be isolated and placed solely on the Alternate Payee when the plan offers no such form.
    • Under ERISA, any QDRO provision requiring a form of benefit the plan does not offer must be disregarded for qualification purposes (29 U.S.C. § 1056(d)(3)(D)(i)).
  4. No abuse of discretion in benefit calculation. Because:
    • The QDRO did not require single-party cost-shifting;
    • The plan’s SPD and plan terms correctly described the actuarial reduction; and
    • The administrator applied standard calculation methods;
    the plan’s $3,400 monthly benefit calculation was reasonable and upheld.
  5. No statutory penalties for document production delays. The panel holds that:
    • Only written requests trigger the plan’s duty under § 1024(b)(4); verbal requests do not.
    • Even assuming some historical documents fell within § 1024(b)(4), Gasper:
      • Ultimately received all materials,
      • Showed no prejudice from any delay (he pursued appeals without difficulty; the 2008 and 2013 SPDs were materially identical on the relevant QJSA language), and
      • Failed to show bad faith or intentional obstruction.
    • Given ERISA’s discretionary penalty scheme, the district court did not abuse its discretion by declining to impose penalties under § 1132(c)(1).

IV. Detailed Analysis

A. Precedents and Authorities Relied Upon

1. Standard of Review in ERISA: Firestone and Fourth Circuit Cases

  • Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989). The Supreme Court’s foundational ERISA decision establishes that:
    • Courts review benefit denials de novo unless the plan gives the administrator “discretionary authority” to determine eligibility or construe terms.
    • Where discretion is granted, courts apply a deferential (abuse-of-discretion) standard.
  • Williams v. Metropolitan Life Ins. Co., 609 F.3d 622 (4th Cir. 2010). Reaffirmed that:
    • Appellate and district courts apply the same standard of review to ERISA benefit decisions.
    • If the plan grants discretion, the reviewing court applies abuse of discretion and considers the Booth factors.
  • Cosey v. Prudential Ins. Co., 735 F.3d 161 (4th Cir. 2013). Illustrates the Firestone framework within the Fourth Circuit: courts examine plan language to determine whether it confers discretion.
  • Tekmen v. Reliance Standard Life Ins. Co., 55 F.4th 951 (4th Cir. 2022). Emphasizes that, even in ERISA cases, summary judgment is appropriate when the evidence is “so one‑sided that one party must prevail as a matter of law.”

Gasper fits comfortably within this framework but adds a new refinement: it separates interpretation of a QDRO (state-law contract) from application of plan terms (ERISA plan discretion).

2. Sister Circuit Precedents on QDRO Interpretation

The court aligns with two earlier circuit decisions:

  • Hullett v. Towers, Perrin, Forster & Crosby, Inc., 38 F.3d 107 (3d Cir. 1994). Held that QDRO interpretation is a matter of state contract law; plan administrators lack specialized expertise in construing state court orders.
  • Matassarin v. Lynch, 174 F.3d 549 (5th Cir. 1999). Similarly concluded that QDROs are state court judgments or contracts, not plan documents, and thus are interpreted de novo by courts under applicable state law.

The Fourth Circuit explicitly adopts this approach, filling a previous gap in its jurisprudence.

3. North Carolina Contract Law Authorities

Because the DRO/QDRO arose from a North Carolina divorce, North Carolina law governs contract interpretation:

  • Lane v. Scarborough, 200 S.E.2d 622 (N.C. 1973). The court’s central task is to ascertain the parties’ intent as expressed in the written instrument.
  • State v. Philip Morris USA Inc., 685 S.E.2d 85 (N.C. 2009). When contract language is clear and unambiguous, intent is derived from the words of the contract, read as a whole.
  • Root v. Allstate Ins. Co., 158 S.E.2d 829 (N.C. 1968). Only when a contract is ambiguous may courts use rules of construction or extrinsic evidence to discern intent.
  • Myers v. Myers, 714 S.E.2d 194 (N.C. Ct. App. 2011). Recognizes that a QDRO functions as a court‑approved contract between the parties.

Applying these principles, the Fourth Circuit treats the DRO/QDRO as an unambiguous contract: “may be reduced” is permissive, not mandatory, especially in contrast to repeated “shall” provisions elsewhere in the order.

4. ERISA’s QJSA and QDRO Framework

  • QJSA Requirements: Dorn v. Int’l Bhd. of Elec. Workers, 211 F.3d 938 (5th Cir. 2000). Dorn is cited for the basic structure of a QJSA under ERISA:
    • A life annuity for the participant, and
    • A survivor annuity of at least 50% for the surviving spouse.
    It also notes that ERISA allows former spouses to be treated as surviving spouses via QDROs (29 U.S.C. § 1056(d)(3)(F)(i)).
  • ERISA QDRO limits: 29 U.S.C. § 1056(d)(3)(D)(i). A DRO is not “qualified” if it requires:
    • Any type or form of benefit not otherwise provided under the plan, or
    • Any option not otherwise provided under the plan.
    The plan administrator invoked this provision to justify treating the “cost‑shifting” language as unenforceable because the plan did not offer a form shifting actuarial costs solely to the Alternate Payee.

5. Document-Production and Penalty Cases

  • Faircloth v. Lundy Packing Co., 91 F.3d 648 (4th Cir. 1996). Interprets 29 U.S.C. § 1024(b)(4) as requiring plan administrators, upon written request, to provide:
    • The “latest updated summary plan description,”
    • The latest annual report, and
    • Other instruments under which the plan is established or operated.
  • Sedlack v. Braswell Servs. Grp., Inc., 134 F.3d 219 (4th Cir. 1998). Reinforces the scope of § 1024(b)(4) and confirms that penalties for delay or failure to provide documents are discretionary under § 1132(c)(1).
  • Davis v. Featherstone, 97 F.3d 734 (4th Cir. 1996). Key for penalty analysis:
    • Courts may consider the nature of the administrator’s failure and whether the participant was prejudiced.
    • Prejudice and bad faith, while not strictly required, are highly relevant to the exercise of discretion.
  • Devlin v. Empire Blue Cross & Blue Shield, 274 F.3d 76 (2d Cir. 2001). Cited as persuasive authority outlining factors for penalty determinations:
    • Bad faith or intentional conduct,
    • Length of delay,
    • Number of requests and documents withheld, and
    • Prejudice to the participant.

The court synthesizes these authorities to uphold the district court’s refusal to impose penalties, emphasizing the lack of prejudice and absence of bad faith.

6. Preservation of Issues on Appeal

  • Hicks v. Ferreyra, 965 F.3d 302 (4th Cir. 2020). Reiterates that appellate courts generally will not consider issues raised for the first time on appeal absent exceptional circumstances.

Using Hicks, the panel declines to entertain Gasper’s new argument on appeal that the plan administrator’s interpretation of the QDRO violated ERISA’s requirement that a DRO specify the amount or percentage payable to the alternate payee (29 U.S.C. § 1056(d)(3)(C)), because he did not raise it below.

B. Legal Reasoning in Depth

1. Standard of Review: Splitting QDRO Interpretation from Plan Discretion

The opinion’s most significant doctrinal development is its explicit bifurcation of the standard of review:

  • QDRO interpretation – de novo review. The court reasons:
    • A QDRO is a state-court judgment embodying a contract between private parties.
    • Its interpretation is governed by state contract law, not ERISA “plan” law.
    • Plan administrators’ expertise lies in plan terms and benefit calculations, not in construing judicial orders.
    • Thus, there is no reason to defer to the administrator on the meaning of a state court’s order.
  • Plan benefit calculations – abuse of discretion. Once the court has determined what the QDRO requires (under state law), any application of that QDRO within the constraints of plan terms is still reviewed deferentially if the plan grants discretionary authority. That includes:
    • Actuarial calculations,
    • Determining available benefit forms,
    • Allocating benefits as long as the method is consistent with the QDRO and plan language.

This distinction is important: it prevents plan administrators from effectively “rewriting” state-court divorce orders by hiding behind Firestone deference, while preserving deferential review of truly technical plan matters.

2. Interpreting the QDRO: “May Be Reduced” vs. “Shall Be Reduced”

Gasper’s central substantive argument was that the QDRO required his ex‑spouse to bear the entire “cost” of the QJSA. He emphasized:

  • The clause that the Alternate Payee’s benefit “may be reduced as necessary to cover the cost” of the QJSA.
  • The absence of any explicit reference to reducing his own benefit.

The court rejects this reading under North Carolina contract principles:

  • The QDRO repeatedly uses “shall” for mandatory obligations:
    • The plan “shall distribute benefits” to the Alternate Payee as a monthly annuity;
    • The Alternate Payee “shall be treated as a surviving spouse” for a portion of the survivor annuity.
  • By contrast, the cost provision uses “may”:
    “The Alternate Payee’s benefit may be reduced as necessary to cover the cost of the [surviving spouse annuity] awarded to Alternate Payee.”
  • Even though “may” can sometimes be construed as mandatory in other contexts, here:
    • The consistent use of “shall” for mandates and “may” for this clause is strong textual evidence that “may” is permissive.
    • The contract, read as a whole, does not support elevating “may” to “shall.”

Because the language is unambiguous, North Carolina law forbids resort to extrinsic evidence:

  • The district court properly refused to consider Gasper’s declaration about his subjective intent when signing the divorce agreement.
  • The Fourth Circuit affirms this approach.

3. What Is the “Cost” of a QJSA?

A key practical question: when a DRO/QDRO refers to the “cost” of a survivor annuity, what does that actually mean in actuarial terms?

The plan administrator (and the court) adopt a straightforward answer:

  • The plan promises a defined benefit based on years of service and compensation.
  • If paid as a single‑life annuity (participant only), there is a base monthly amount.
  • If paid as a QJSA (participant + surviving spouse/former spouse), the plan must make payments potentially over two lifetimes (participant’s and spouse’s).
  • To make this financially equivalent, an actuarial reduction is applied to the monthly benefit (lowering it) to reflect the increased payout obligation.

Thus:

  • The “cost” is not a separate standalone fee or surcharge; it is the actuarial reduction.
  • This reduction is applied to the total benefit stream payable under the plan before division between Participant and Alternate Payee.

The plan’s SPD, consistent with the plan itself, expressly states that under a surviving spouse annuity:

  • The participant’s monthly pension is actuarially reduced at retirement to fund the survivor benefit.
  • The SPD includes a numeric example illustrating this mechanism.

The court accepts the administrator’s explanation that:

  • There is “no actual ‘cost’… that may be assigned to the alternate payee” as a distinct amount.
  • The plan does not offer a form of benefit under which only the Alternate Payee’s share would be reduced to fund the QJSA.
  • To comply with ERISA’s QDRO rules, any DRO provision that demands that nonexistent benefit form must be ignored for QDRO qualification purposes.

In other words, the DRO’s language authorizing cost-shifting could only be honored if the plan already provided such an option. Since it did not, the provision was effectively inoperative as a matter of ERISA, and the plan’s uniform actuarial reduction was correct.

4. Abuse-of-Discretion Review of the Benefit Calculation

Once the court concluded:

  • The QDRO did not mandate sole cost allocation to the ex-spouse, and
  • The plan’s structure allowed only for an across‑the‑board actuarial reduction,

the remaining question was whether the administrator’s actual calculation (producing $3,400 a month for Gasper) was a reasonable exercise of discretion.

Under Booth v. Wal‑Mart Stores, Inc. Associates Health & Welfare Plan, 201 F.3d 335 (4th Cir. 2000), courts consider factors such as:

  • The language of the plan,
  • Consistency with the plan’s purposes and prior interpretations,
  • Reasoned decision-making and substantial evidence, and
  • Any conflict of interest.

The Fourth Circuit endorses the district court’s application of these factors, underlying that:

  • The plan language and SPD clearly describe that the survivor benefit is funded by an actuarial reduction to the participant’s monthly benefit.
  • The administrator applied that methodology uniformly and consistently.
  • The resulting number (3,400) follows the articulated formula. Gasper’s proposed amount (3,785.26) presupposed a benefit form the plan did not offer.

No abuse of discretion is found.

5. Statutory Penalties for Failure to Provide Documents

Gasper sought penalties under 29 U.S.C. § 1132(c)(1), arguing that the plan administrator:

  • Failed to timely produce certain plan amendments and summaries of material modifications, and
  • Did not initially provide the July 2008 SPD, which was in effect at the time the DRO was qualified as a QDRO in April 2013.

The court’s reasoning proceeds in two key steps.

a. What triggers the duty to provide documents?
  • Section 1024(b)(4) requires production of certain documents “upon written request” of a participant or beneficiary.
  • Gasper’s June 2020 request was oral; thus, it did not trigger the statutory duty.
  • His July 20, 2020 request was written and did trigger the duty, but the plan responded by providing the then-current documents and, later, all historical materials during litigation.
b. Discretionary penalties: prejudice and bad faith

The maximum penalty (at the time of the statute’s enactment) is $100 per day, but imposition is expressly left to the court’s discretion. The Fourth Circuit defers to the district court’s exercise of that discretion, emphasizing:

  • No demonstrated prejudice.
    • Gasper pursued two administrative appeals without the missing historical documents and did not show how the absence of those documents hindered his ability to argue his case.
    • The 2008 and 2013 SPDs contained materially identical language concerning the survivor annuity and its cost, so the lack of the 2008 SPD created no substantive disadvantage.
  • No evidence of bad faith or willful obstruction.
    • The administrator responded repeatedly and provided the then-current plan documents.

Even assuming (without deciding) that some of the requested historical documents technically fall within “other instruments under which the plan is established or operated,” the absence of prejudice and bad faith justifies the denial of penalties. This underscores that § 1132(c)(1) is not a strict-liability device for every delay or imperfection in document production.

V. Complex Concepts Explained in Plain Terms

1. ERISA Participant, Alternate Payee, DRO, and QDRO

  • Participant. An employee or former employee who is or may become eligible to receive benefits from a plan (29 U.S.C. § 1002(7)).
  • Alternate Payee. A spouse, former spouse, child, or other dependent granted a right to receive part of a participant’s benefit via a DRO (29 U.S.C. § 1056(d)(3)(K)).
  • Domestic Relations Order (DRO). A state court order, usually issued in a divorce, that divides marital property and may assign part of an ERISA pension to a former spouse or child.
  • Qualified Domestic Relations Order (QDRO). A DRO that satisfies specific ERISA requirements—correct identification of parties, plan, amounts/percentages, and no requirement that the plan pay forms or types of benefits it does not offer. Only a QDRO can carve out an exception to ERISA’s general rule that pension benefits cannot be assigned or alienated.

2. Qualified Joint and Survivor Annuity (QJSA)

  • By default, many ERISA defined benefit plans must pay benefits as a QJSA to married participants.
  • The QJSA provides:
    • A monthly annuity for the participant’s life, and
    • At least 50% of that amount (sometimes more, depending on plan) to the surviving spouse after the participant’s death, for the spouse’s life.
  • This extended protection costs the plan more in expected payouts. To maintain actuarial equivalence, the plan reduces the participant’s monthly benefit at retirement.
  • That reduction is the “cost” of the survivor benefit—essentially, the price of insuring the spouse’s lifetime income.

3. Actuarial Adjustment

An actuarial adjustment is a mathematical recalculation of a benefit amount to reflect:

  • Life expectancy of the participant and spouse,
  • Start date and duration of payments, and
  • Interest or discount rates used by the plan.

If a participant takes:

  • Benefits earlier than “normal retirement age,” the monthly amount is often reduced.
  • Benefits in a joint-and-survivor form, the monthly amount is reduced to account for possible longer payment duration.

There is generally no separate “line item” charge; the adjustment is simply built into a lower monthly benefit amount.

4. De Novo Review vs. Abuse-of-Discretion Review

  • De novo review.
    • The court looks at the issue fresh, without deference to the prior decision-maker.
    • Applies to legal questions like interpreting contracts (here, the QDRO under state law).
  • Abuse-of-discretion review.
    • The court asks only whether the decision-maker’s choice was reasonable and supported by substantial evidence.
    • Applies to plan administrators’ decisions where the plan grants them discretionary authority.
    • The court will not simply substitute its own preferred calculation if the administrator’s decision is within a range of reasonable outcomes.

5. ERISA Document Requests and Penalties

  • Document requests (29 U.S.C. § 1024(b)(4)). A participant can request, in writing, certain key documents: the most recent SPD, latest annual report, and other operative instruments.
  • Penalties (29 U.S.C. § 1132(c)(1)).
    • If the administrator fails to provide requested documents within 30 days, a court may (not must) impose penalties of up to $100 per day (now adjusted upwards by regulation, but the statute uses $100).
    • Courts look at factors like:
      • Was the delay intentional or in bad faith?
      • How long was the delay?
      • Did the participant suffer real harm or prejudice?

VI. Impact and Practical Implications

A. For ERISA Plan Administrators and Sponsors

  1. QDRO interpretation is now clearly a judicial function in the Fourth Circuit. Plan administrators cannot rely on deferential review for their legal interpretation of DRO/QDRO language. Courts will:
    • Apply state contract law de novo,
    • Scrutinize the language as they would any other contract, and
    • Disregard an administrator’s contrary reading if inconsistent with the state-law interpretation.
  2. QDRO qualification practices. The opinion implicitly approves a common administrative practice:
    • “Qualifying” a DRO as a QDRO while disregarding any provisions that would require non-existent benefit forms or violate § 1056(d)(3)(D).
    • Administrators should, however, be explicit in their qualification letters about which portions of the DRO cannot be implemented under the plan.
  3. Reliance on SPDs. The court accepts the SPD as evidence of how the plan implements the QJSA cost provision, noting that:
    • The SPD is not itself the plan, but
    • Its terms can corroborate the plan’s structure where consistent.
    Administrators should ensure that SPDs clearly and accurately describe:
    • Available annuity forms, and
    • How survivor benefits affect the participant’s monthly amount.
  4. Document-production protocols. The holding reinforces key compliance practices:
    • Track and respond promptly to written document requests, which alone trigger statutory obligations.
    • Maintain and be prepared to produce historical plan documents and SPDs that may be “instruments under which the plan is operated.”
    • Document all responses to requests, including which documents were sent and when.
    Although the absence of prejudice saved the administrator from penalties here, a different set of facts (clear harm or bad faith) could lead to substantial liability.

B. For Family-Law Practitioners and QDRO Drafters

  1. Be precise with “may” vs. “shall.” This decision is a cautionary tale:
    • If the parties intend that one spouse must bear the entire cost of a QJSA, they should use mandatory language like “shall” or “must.”
    • Using “may” without further clarification will be read as granting only discretionary authority—not an obligation—to allocate cost that way.
  2. Align DROs/QDROs with actual plan benefit forms. Before drafting cost-sharing or allocation provisions, QDRO drafters should:
    • Obtain and review the plan’s SPD and, ideally, the full plan document.
    • Confirm what benefit forms and options the plan actually offers.
    • Avoid requiring any arrangement (e.g., “ex-spouse alone bears QJSA cost”) that the plan cannot implement.
    Otherwise:
    • The problematic language may be ignored or severed.
    • The parties’ substantive bargain may not be realized, even though the QDRO is deemed “qualified.”
  3. State-law contract principles will control QDRO meaning. Because the QDRO is treated as a contract, state contract law doctrines—including:
    • Plain meaning,
    • Rules about ambiguity, and
    • Limits on using extrinsic evidence—
    will determine the outcome. Counsel should draft with their jurisdiction’s contract law in mind.

C. For Plan Participants and Alternate Payees

  1. Understand that QJSA “costs” usually reduce everyone’s monthly amounts. In most defined benefit plans:
    • The “cost” of a survivor benefit is the actuarial reduction applied to the entire benefit stream.
    • Both the participant and alternate payee effectively share in that cost because their shares are taken from the already reduced total.
    Unless the plan explicitly offers a special form that shifts the reduction solely to one party, such unilateral cost-shifting is often not feasible.
  2. Preserve all legal arguments early. Participants disputing benefit calculations should:
    • Raise all arguments (including any ERISA statutory interpretation points) in the administrative appeal and district court.
    • Understand that new arguments on appeal will likely be deemed waived absent extraordinary circumstances.
  3. Make document requests in writing. To trigger ERISA’s document‑production duties and potential penalties:
    • Requests must be in writing and clearly identify the documents sought.
    • Participants should maintain copies and proof of delivery.

VII. Conclusion

The Fourth Circuit’s decision in Gasper v. EIDP, Inc. makes two principal contributions to ERISA law in the circuit:

  1. It formally adopts de novo review for QDRO interpretation, treating QDROs as state-law contracts separate from the plan, while preserving abuse-of-discretion review for plan administrators’ benefit calculations.
  2. It clarifies that the “cost” of a QJSA under a defined benefit plan is the actuarial reduction applied to the total benefit, and that ERISA forbids QDROs from compelling plans to provide benefit forms they do not offer—such as shifting that cost entirely to the alternate payee when no such form exists.

On the procedural side, the opinion reaffirms that ERISA’s document‑production penalties are discretionary and hinge heavily on prejudice to the participant and the administrator’s good or bad faith. Verbal requests are insufficient; written requests are key.

For plan administrators, this case underscores the importance of transparent QDRO qualification decisions and careful, consistent application of plan provisions. For family-law practitioners and QDRO drafters, it is a reminder that words like “may” and “shall” are not interchangeable, and that QDROs must be crafted in harmony with the benefit forms a plan can actually deliver. Finally, for participants and alternate payees, the case illustrates both the complexities of dividing pensions on divorce and the importance of understanding how survivor benefits are funded and divided.

Case Details

Year: 2025
Court: Court of Appeals for the Fourth Circuit

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