Survivor benefits do not ride along with a Majauskas cite — and the deadline that controls them is not in the court rules. It is in the member’s retirement papers.
First, some news. The New York Law Journal has published the first installment of my series on NYPD and FDNY pension drafting: “NYPD and FDNY Pension Drafting in the Era of a Retirement Wave (Part 1): Why Citing ‘Majauskas’ Is No Longer Enough” (July 14, 2026). The article makes the full case, with the citations, for something this blog has been saying all year: the agreement controls, and silence is permanent. This post picks up the piece of that argument with the shortest fuse — the survivor benefit, and the clock it runs on.
A pension order is not a death benefit
The Court of Appeals has said it twice, in McCoy v. Feinman and again in Kazel v. Kazel: a judgment of divorce and a pension order awarding a share of the plan do not automatically include death benefits. Your client can hold a properly executed DRO, collect her share of the monthly allowance for years — and lose every dollar of it the day the member dies, because nobody negotiated the survivor option.
The Second Department applied the rule in Coulon v. Coulon: the parties agreed to a Majauskas share of the pension — and nothing more. When the trial court designated the former wife a surviving spouse anyway, the Appellate Division reversed. The agreement had no survivor-benefit provision, so no court could supply one.
How long the silence follows you
If you think time heals a silent stipulation, read A.F. v. D.F. (Sup. Ct., Nassau Co. 2025). The parties divorced in 2010. Nearly fifteen years later, the former wife argued a survivorship option had been central to the negotiations. The agreement was silent — so the DRO could not provide it, and the 2010 DRO was vacated. What the four corners of the agreement do not say, extrinsic evidence of intent cannot restore. Fifteen years of assumed protection, gone on motion.
The clock nobody puts in the settlement calendar
Here is what makes survivor benefits different from every other drafting trap in these cases. At retirement, the member elects an option: Maximum Allowance — the largest monthly check, and no survivor benefit — or one of the joint-and-survivor options. That election is generally irrevocable. Which means the survivor protection your client bargained for must be expressed in the agreement, specified in the DRO, and the DRO must be on file with the retirement system before the member retires. Not before the judgment. Not before the appeal runs. Before the retirement.
In the middle of the largest retirement wave the NYPD and FDNY have ever produced, that is not a technicality — it is the whole case. The member who files retirement papers during your settlement negotiation just moved your real deadline up to whenever the pension system processes the application.
Both sides have skin in this
- Representing the alternate payee? Negotiate the survivor option expressly, put the option election in the agreement, and get the DRO filed before retirement. A Majauskas cite conveys a share of the monthly allowance. That is all it conveys.
- Representing the member? Silence is not your friend either. An unaddressed survivor demand resurfaces as post-judgment motion practice — A.F. v. D.F. cost both parties their settled expectations, fifteen years out. Say what the option election is, even when the answer is Maximum Allowance.
And know the limit of the repair shop. Under Kraus v. Kraus, a court can amend a DRO to accurately reflect the agreement — it cannot expand the DRO beyond it. The only remedy for a deficient agreement is a new agreement, and that requires the one thing your client no longer has: the other side’s consent. The agreement is the last chance.
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Go deeper
The full framework — the four hidden assets, the disability classification, the remedy cases — is in the New York Law Journal article, and in the companion piece on this blog, Why Citing Majauskas Is No Longer Enough. For CLE credit, my course “End of Watch: NYPD & FDNY Pension Drafting in the Era of the Retirement Wave” is now streaming on Lawline.
Your job is to spot the issue. Our job is to draft the order — and to beat the retirement date.
If there is a pension in your case and a retirement anywhere on the horizon, call us at intake, not at settlement:
Attorney Advertising. Informational and educational purposes only — not legal advice. Erin Norris-Colgan, Esq. — Senior Partner, Angiuli & Gentile, LLP; Co-Founder, Northstar QDRO. northstarqdro.com
