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socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 39182
Experience:  Retired (mostly)
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My name is Jeff. I am retired from a 30 year career in the

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My name isXXXXX am retired from a 30 year career in the fire service in southern california (1973 to 2002). My retirement system is Cal PERS. My 1st wife and I were married for 14 years. We have been divorced since 1987. She passed away in march of 2010 from pneumonia. I recall from the divorce documents that her portion of my retirement was 1/2 of 168 months. We both began receiving the PERS retirement benefits in January of 2003. I received a letter from and spoke with Cal PERS community property division and they stated that the divorce decree did not stipulate what was to happen to her (x-wife, Trina) portion of my retirement if she were to pre-decease me, which she has. They also said that if I agreed that these monies should remain as part of her estate and go to her beneficeries that I should write them a letter stating that I agree with that. If not, I should go before the orange county superior court and request the Judge to grant these monies back to me (throughout the remainder of my lifetime). I would very much like to have these monies added back to my own retirement and not be part of her sizable estate to be passed on to her beneficeries. Can you tell me the proceedures and paperwork that would be needed to accomplish this and how to go about it? Should I just hire an attorney to deal with this? What is the best way to go and what are the chances that the court will grant her portion if our PERS benefits back to me? Thank You Jeff

The means by which you would request that the court pay the benefits to you, is to file a motion (FL-301) to determine the parties' community property interests and substitute the personal representative of the decedent's estate for the decedent spouse. Before doing so, you would have to file a claim with the decedent's estate demanding that the estate agree to relinquish the decedent's property interests to you in probate court. This gets really complicated, and there are no forms available to fullfil the process.

In fact, I doubt that most family law attorneys would know how to do it, because it's such a rarity.

Perhaps more important is that I don't see the court ordering the property distributed to you, because even at death, your ex's estate is entitled to the same benefits as were availble in life (except for spousal support). So, I have a hunch that you're wasting your time and money.

Regardless, if you want to try it, then you need a very experienced family law attorney to assist.

For a referral, see this link (make sure that you explain to the referral service rep the nature of this action and how complex it is likely to be -- otherwise, you may end up with an attorney who will screw it up and charge you for the educational opportunity).

Hope this helps.

And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

Customer: replied 6 years ago.

Thank You,

Tha only reason I question the allocation of these funds is that PERS made it sound rather simple and that her estate is huge even without these funds so I guess i'm being a little selfish. You mention getting a VERY experienced Family Law Attorney. Do you think an Estate Attorney would be more helpful? Honestly, I'm not going to pursue this @ great expense especially if the outcome is unlikely to be favorable for me. Its just that I could use the income and her estate is rather large and the heirs are mostly all wierd. Thank you for your assistance.





The problem with this sort of action is that it crosses probate with family law, and it concerns what I would characterize as an "omitted asset," for family law purposes. What makes it even more complicated, is that the asset isn't exactly omitted -- rather it's disposition is not completely determined. By default, the decedent estate is entitled to the money, and frankly, I think that PERS is trying to push its risk off on to your plate, because PERS is too chicken to simply take the position that the money is already the property of the decedent and thus decends to the decedent's beneficiariy/ies, like any other asset would decend.

In other words, they don't want you coming back and suing, so they're making a mountain out of a molehill.

That said, You could easily burn $10,000 in legal fees getting a ruling, and it may be unfavorable to you. Ideally, you would want a law firm with both estate and family law attorneys on board. Trouble is that the law firms who have that sort of depth are generally the biggest and most costly.

Here's an idea: Maybe the best thing to do is nothing. Then, PERS will sit on the dough, and it will be up to the decedent's representative to contact you and try to work something out. You might be able to extract some dough from the estate that way, without putting out any legal fees.

Hope this helps.

And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

socrateaser and other California Employment Law Specialists are ready to help you
Customer: replied 6 years ago.

Thank you. That's undoubtedly a better approach.

Thanks again,


You're welcome and good luck.