Federal law mandates that most private pension plans, which are covered by ERISA, must provide for automatic survivor benefits for retirees and vested participants who are still working. These plans must provide "a qualified joint and survivor annuity" of at least 50 percent of the amount payable before the death of the first spouse, and they must provide a "qualified preretirement survivor annuity" in the case of a vested participant who dies before the annuity starting date. An employee’s spouse may only waive the joint and survivor annuity in writing, and a similar proviso applies to federal Civil Service employees.

A former spouse may have the same rights as a surviving spouse when they are mandated in a QDRO, which distributes retirement benefits.

ERISA does not require state courts to treat survivor benefits as marital property. Most courts have held that they are not property since they have no present value, and unlike pension benefits, they have no possibility of becoming available to the employee for his or her direct use.

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