First, the court held that the anti-alienation provision of ERISA did not prevent Wanda from waiving any rights she may have had to her husband's insurance benefits. Fox Valley Vicinity Constr. Workers' Pension Fund v. Brown, 897 F.2d 275, 280 (7th Cir. 1990) (en banc), cert. denied, 498 U.S. 820, 111 S.Ct. 67, 112 L.Ed.2d 41 (1990). ERISA's anti-alienation provision, 29 U.S.C. § 1056(d)(1), states that, "[e]ach pension plan shall provide that benefits provided under the plan may not be assigned or alienated."

The majority of circuits that have addressed this issue have held that such waivers are valid under certain circumstances. See, e.g., Altobelli v. Int'l Bus. Mach. Corp., 77 F.3d 78 (4th Cir. 1996); Mohamed v. Kerr, 53 F.3d 911 (8th Cir. 1995); Brandon v. Travelers Ins. Co., 18 F.3d 1321 (5th Cir. 1994); Metro. Life Ins. Co. v. Hanslip, 939 F.2d 904 (10th Cir. 1991); Fox Valley Vicinity Constr. Workers Pension Fund v. Brown, 897 F.2d 275 (7th Cir. 1990) (en banc). Only two courts of appeals have disagreed, holding that plan administrators need not look beyond the documents on file with the plan to determine whether there has been a valid waiver effectuated in outside private documents.

Manning v. Hayes, 212 F.3d 866, 870 (5th Cir. 2000). See also Metropolitan Life Ins. Co. v. Pettit, 164 F.3d 857, 862 (4th Cir. 1998); Mohamed v. Kerr, 53 F.3d 911, 913 (8th Cir. 1995); Krishna v. Colgate Palmolive Co., 7 F.3d 11, 15 (2d Cir. 1993); Metropolitan Life Ins. Co. v. Hanslip, 939 F.2d 904, 906 (10th Cir. 1991); Brown v. Connecticut General Life Ins. Co., 934 F.2d 1193, 1195 (11th Cir. 1991); McMillan v. Parrott, 913 F.2d 310, 311 (6th Cir. 1990); Fox Valley Vicinity Constr. Workers Pension Fund v. Brown, 897 F.2d 275, 278 (7th Cir. 1989). But see In re Estate of Egelhoff, 989 P.2d 80, 92 (Wash. 1999), cert. granted, 530 U.S. 1242, 120 S.Ct. 2687, 147 L.Ed.2d 960 (2000).

Thus, the rule in McMillan would require us to affirm because here, as there, the plan documents require the ex-wife, Johnson, to be paid. Accord Fox Valley Vicinity Const. Workers Pension Fund v. Brown, 897 F.2d 275, 282-285 (7th Cir.) (en banc) (dissenting opinions), cert. denied, 498 U.S. 820, 111 S.Ct. 67, 112 L.Ed.2d 41 (1990). Federal Common Law

However, although any assignment of benefits should follow the QDRO requirements, QDRO requirements do not need to be followed in order to waive an interest in welfare benefits under ERISA. Fox Valley Vicinity Constr. Workers Pension Fund v. Brown, 897 F.2d 275, 279 (7th Cir. 1990) (en banc); see also Altobelli v. Int'l Bus. Machines Corp., 77 F.3d 78, 81 (4th Cir. 1996). Assuming that this Court interprets the provision in the divorce judgment as a waiver, this waiver would not have to meet the technical requirements of a QDRO under the statute.

This is precisely what the majority of circuit courts that have considered the issue have done, holding that federal common law governs disputes between a designated former spouse beneficiary and other claimants to ERISA plan proceeds. See Manning, 212 F.3d at 870-72; Clift v. Clift, 210 F.3d 268 (5th Cir. 2000); Rhoades v. Casey, 196 F.3d 592, 598-99 (5th Cir. 1999), cert. denied, 531 U.S. 924 (2000); Hill v. ATT Corp., 125 F.3d 646, 648 (8th Cir. 1997); Estate of Altobelli v. Int'l Bus. Machines Corp., 77 F.3d 78, 81-82 (4th Cir. 1996); Mohamed v. Kerr, 53 F.3d 911, 914 (8th Cir. 1995), cert. denied, 516 U.S. 868 (1995); Brandon v. Travelers Ins. Co., 18 F.3d 1321, 1325-27 (5th Cir. 1994), cert. denied, 513 U.S. 1081 (1995); Fox Valley Vicinity Constr. Workers Pension Fund v. Brown, 897 F.2d 275, 280 (7th Cir. 1990) (en banc), cert. denied, 498 U.S. 820 (1990); Lyman Lumber Co. v. Hill, 877 F.2d 692, 693-94 (8th Cir. 1989); see also Melton v. Melton, 324 F.3d 941, 945 (7th Cir. 2003) (noting, in post- Egelhoff decision, that "ERISA does not preempt an explicit waiver of interest by a nonparticipant beneficiary of such a plan"). These courts have relied upon common-law principles to conclude that the named beneficiary waived entitlement to plan benefits.

E.g., Brown v. Connecticut Gen. Life Ins. Co., 934 F.2d 1193, 1195 (11th Cir. 1991) (citing McMillan v. Parrott, 913 F.2d 310, 311 (6th Cir. 1990)).See e.g., Fox Valley Vicinity Constr. Workers Pension Fund v. Brown, 897 F.2d 275, 278 (7th Cir. 1990), cert. denied, 498 U.S. 820 (1990). Having decided that ERISA preempts the application of state law in this case, this court may now return its attention to the issue of whether, in a marital agreement that has been incorporated into a divorce judgment, a spouse may effectively waive his beneficiary interest in an ERISA-regulated plan. Courts that have addressed this issue "have split as to whether ERISA itself supplies the rule of law or whether judges must look to federal common law for the controlling principles."

To the contrary, external documents must be consulted in some instances in association with beneficiary determinations and benefit distribution. For example, plan administrators "must investigate the marital history of a participant and determine whether any domestic relations orders exist that could affect the distribution of benefits."Fox Valley Vicinity Constr. Workers Pension Fund v. Brown, 897 F.2d 275, 282 (7th Cir. 1990) (en banc); see also Estate of Altobelli v. International Business Machines Corp., 77 F.3d 78, 81 (4th Cir. 1996) ("ERISA was designed to simplify plan administration as much as possible, but it still requires administrators to consider divorce decrees to determine whether they are Qualified Domestic Relations Orders, which are enforceable."). Thus, nothing in the language of the fiduciary duty provision, 29 U.S.C. § 1104(a)(1)(D), explicitly addresses or invalidates beneficiary waivers set forth in external documents.

ence to federal common law. See, e.g., Estate of Altobelli v. International Business Machs. Corp., 77 F.3d 78, 80 (4th Cir. 1996) ("The issue [of] whether a divorced spouse, who was the designated beneficiary under her ex-husband's ERISA plan, effectively waived her benefits via a marital settlement agreement [may be] resolved by developing federal common law."); Mohamed v. Kerr, 53 F.3d 911, 914 (8th Cir. 1995) ("Thus, under federal common law, a settlement entered into pursuant to a judgment of dissolution may divest a former spouse of beneficiary rights. . . ."); Brandon v. Travelers Ins. Co., 18 F.3d 1321, 1326 (5th Cir. 1994) (federal common law recognizes beneficiary's ability to waive benefits in divorce decree by specific terms extinguishing the interest); see also Metropolitan Life Ins. Co. v. Hanslip, 939 F.2d 904, 907 (10th Cir. 1991) (same); McMillan v. Parrott, 913 F.2d 310, 312 (6th Cir. 1990) (same); Lyman Lumber Co. v. Hill, 877 F.2d 692, 693-94 (8th Cir. 1989) (same); Fox Valley Vicinity Constr. Workers Pension Fund v. Brown, 897 F.2d 275, 280 (7th Cir.) (en banc), cert. denied, 498 U.S. 820, 111 S.Ct. 67, 112 L.Ed.2d 41 (1990) (same); see also Czarski v. Bonk, 928 F. Supp. 719 (E.D.Mich. 1996) ("[A] growing body of federal common law recognizes that a plan beneficiary may effectively waive her right to benefits pursuant to a divorce decree."). These courts have uniformly determined that while ERISA does not prohibit such waivers, ERISA provides no guidance as to what acts constitute a valid waiver of benefits.

The designation of beneficiaries plainly relates to an ERISA plan, and thus, Federal law applies. McMillan v. Parrott (6th Cir. 1990), 913 F.2d 310, 311; Fox Valley Vicinity Construction Workers Pension Fund v. Brown (7th Cir. 1990), 897 F.2d 275, 278. Terri-Beth's citation to In re Estate of Anderson (1990), 195 Ill. App.3d 644, does not persuade us otherwise.