SAN FRANCISCO — The California First District Court of Appeal recently reversed a trial court ruling that denied an ex-wife the title of  "surviving spouse" regarding her late husband’s pension.

“Because the entry of a judgment of legal separation does not terminate a marriage, but only separates a couple‘s economic interests, the plain meaning of the term 'surviving spouse' includes a legally separated person,” according to the appeals court's June 30 decision.

Before passing away, plaintiff Marianne Irvin and her husband, Richard Irvin, who was a 30-year member of the retirement association, became legally separated. However, Mr. Irvin made it clear his wife, separated or not, would receive the pension as the “surviving spouse” after his demise. But when he died, defendant Contra Costa County Employees‘ Retirement Association Board (Board) stepped in and attempted to keep Marianne Irvin from collecting benefits based on the separation judgement.

Relaying on a 2013 Superior Court of Santa Barbara County ruling that ruled that a separated spouse is not a surviving partner, the Board denied her petition for a writ of mandate.

“The couple reconciled in 2012, but they nonetheless finalized their separation in October 2013 through the entry of a judgment of legal separation, apparently to insulate Marianne‘s assets from the claims of Richard‘s creditors,” according to the appeals court decision, which further notes that the marriage contract acknowledged that even though Mr. Irvin's pension was separate property, he wished she would receive it. 

Discussing legal separation and relevant pension law, the appeals court ruled that "a judgment of legal separation continues to permit the parties to a marriage to separate their financial affairs without severing their marital bonds.” 

Also discussing deference to the Board’s interpretation, the court of appeals acknowledged how deference was governed in the case Yamaha Corp. of America v. State Bd. of Equalization 1998. 

The appellate court said the Board did not offer a a "substantial public policy reason" to deny the benefits.

"The Board gave no real reason for departing from this plain meaning,” according to the appeals court decision, adding that "several substantive provisions of the Probate Code treat legally separated spouses in the same manner as a surviving spouse."

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