Annotated Table of Cases for state and local government pension plans

These cases have been assembled to assist the attorney with reference to the disposition of state and local government pension plans.

In re Marriage of Allison

(1987) 189 Cal.App.3d 849, 234 Cal.Rptr. 671

Prior bifurcation of status will not defeat wife's right to survivor benefits from husband's ERISA qualified plan. (Court required plan to start over and re-do option from retirement date, when husband retired under option without wife's consent or court order.)

(1984) 161 Cal.App.3d 65, 207 Cal.Rptr. 392

PERS survivor benefit taken in lieu of ordinary death benefit by widow should be divided pro tanto between former wife and member's widow.

(1985) 168 Cal.App.3d 742, 214 Cal.Rptr. 661

Health of employee appropriate consideration in determining value of plan.

(1970) 5 Cal.App. 3d 409, 85 Cal.Rptr. 122.

Obligations to first spouse may take precedence over second spouse's community property rights.

In re Marriage of Carnall

(1989) 216 Cal.App.3d 1010, 265 Cal.Rptr. 271

Court may not require former spouse to be designated as employee's "surviving spouse," for a survivor continuance type benefit where that provision violates terms of plan requiring legal spouse.

However, if employee has a surviving spouse who qualifies for the survivor continuance type benefit, the former spouse may claim an interest.

In re Marriage of Colvin

(1992) 2 Cal.App.4th 1570; 4 Cal.Rptr.2d 323.

A separate-accounts scheme for awarding benefits to a nonmember spouse is not mandated by the Judges Retirement Law. (Note subsequent liberalizing amendments to Judges Retirement Law, Government Code §§75050 et seq.)

Cf. separate accounts arrangements under PERS and STRS. Great care should be exercised before choosing separate accounts. Refer to Parkyn & DiFranza, "Establishment of Separate Accounts for PERS and STRS Members under Civil Code Section 4800.8, " Family Law News, Summer 1990.

Coughlin v. Board of Administration

(1984) 152 Cal.App.3d 70, 199 Cal.Rptr. 286

Strict application of statutes regarding statutory beneficiary designations may be inappropriate. This case may be helpful where a deadline was missed or similar error was made.

In re Marriage of Cramer

(1993) 20 Cal.App.4th 73, 24 Cal.Rptr.2d 372

Former spouse cannot be retained as beneficiary of a survivor continuance type benefit under county plan after the termination of her marriage to Member. [If had been an eligible widow to preserve the benefit, former spouse would have had a claim to the benefit under other cited cases.]

In re Marriage of Crook

(1992) 2 Cal.App.4th 1606, 3 Cal.Rptr.2d 905

An express waiver required to waive important property rights. Clause in MSA that W would start her benefit when husband retired (i.e.,waive Gillmore rights) insufficient waiver. Husband's attempt to keep all increases due to post-separation salary increases foiled again. Use this case to argue against implied waivers of survivor and successor benefits--since these were found to be a fundamental right under Family Code 2610--See Taylor.

Fatemi v. Los Angeles County Employees' Retirement Association

(1994) 21 Cal.App.4th 1797, 27 Cal.Rptr.2d 105

Surviving spouse's claim to benefits based on statute superseded beneficiary designation for Member's child. Fact that Member did not name surviving spouse as beneficiary of pre-retirement benefits of no import.

In re Marriage of Gillmore

(1981) 29 Cal.3d 418, 174 Cal.Rptr. 493, 629 P.2d 1

Trial courts are encouraged to cash-out pension rights, if feasible.

Nonmember spouse may elect to begin receiving his/her share of pension directly from employee spouse, if employee spouse fails to retire.

Once nonemployee spouse makes election to begin receiving benefits, nonemployee gives up increased payments in the future due to increased age, longer service and higher salary.

Gunn v. United Airlines, Inc.

(1982) 138 Cal.App.3d 765, 188 Cal.Rptr. 302

Subsequent spouse may be deprived of community property interest in retirement benefits based on promise to former spouse.

In re Marriage of Jensen

(1991) 235 Cal.App.3d 1137, 286 Cal.Rptr. 911.

Court may not require that the plan pay W before H's actual retirement in non-ERISA plan. Cites Civil Code 4800.8 (now Family Code §2610).

In re Marriage of Lucero

(1981) 118 Cal.App.3d 836, 173 Cal.Rptr. 680

Right to redeposit contributions withdrawn from pension to get increased benefits is a community right when the service giving rise to it occurred during the community.

In re Marriage of Nice

(1991) 230 Cal.App.3d 444, 281 Cal.Rptr. 415

Court may not order public plan to pay Nonmember before retirement of Member unless terms of plan allow.

Plan may not be ordered to pay survivor continuance type benefits to former spouse where plan requires Widow(er), but wife must still be made whole, for example by cash-out of survivor benefits or ordering plan to pay Former Spouse her prorata share of any survivor benefits that became due under plan.

In re Marriage of Powers

(1990) 218 Cal.App.3d 626, 267 Cal.Rptr.350

Terminable interest rule abolished retroactively to benefit estate of wife who died four years before husband's retirement (after divorce but before disposition order re Plan). Heirs allowed to collect Mrs. Powers share.

In re Marriage of Shattuck

(1982) 134 Cal.App.3d 683, 184 Cal.Rptr. 698

Court should consider health in determining pension plan's value.

In re Marriage of Taylor

(1987) 189 Cal.App.3d 435, 234 Cal.Rptr. 486

Terminable interest rule abolished retroactively.

Waite v. Waite

(1972) 6 Cal.3d 461, 99 Cal.Rptr. 325, 492 P.2d 13

Advent of the terminable interest rule in Judges Retirement Plan case. Nonemployed spouse could receive no benefits after death of employee nor could she leave her share to her heirs, due to provisions of judge's plan. Actuarial inequality noted.

In re Marriage of Ziegler

(1989) 207 Cal.App.3d 788, 255 Cal.Rptr. 100

Survivor benefits can be awarded as part of a spousal support obligation even where the nonemployed spouse has no property interest in the benefits.