Allard v. Frech

• Decision Date: 04 May 1988
• Docket Number: No. C-6863,C-6863
• Citation: 754 S.W.2d 111
• Parties: Billy L. ALLARD, Petitioner, v. Martha Parten FRECH, Independent Executrix of the Estate of Billie J. Allard, Deceased, Respondent.
• Court: Texas Supreme Court

Page 111

754 S.W.2d 111

Billy L. ALLARD, Petitioner, v. Martha Parten FRECH, Independent Executrix of the Estate of

Billie J. Allard, Deceased, Respondent.

No. C-6863.

Supreme Court of Texas.

May 4, 1988.

Rehearing Denied July 6, 1988.

Henry E. Kerry and Charles B. Lewis, Kerry, Harrison, Brown, Lewis, Steck & Forderhase, Fort Worth, for petitioner.

John R. Lively, Law Office of John R. Lively, Fort Worth, for respondent.

MAUZY, Justice.

This case involves the proper characterization of retirement benefits and joint savings account proceeds in a probate action. The trial court rendered judgment characterizing the husband's retirement benefits and joint savings account proceeds as community property and awarded the wife's estate one-half of the husband's retirement benefits and one-half of the proceeds in the joint savings account. The court of appeals affirmed these findings of the trial court holding that the proceeds from the husband's retirement plan were properly characterized as community property and that the funds held in the joint savings account were not held in joint tenancy with right of survivorship. 735 S.W.2d 311. We affirm.

Billie J. Allard and Billy L. Allard were married from 1945 until Mrs. Allard's death on April 11, 1983. Shortly after the marriage, Mr. Allard began working for General Dynamics Corporation and retired from his position in May, 1982. As a result of his employment, Mr. Allard subscribed and contributed community funds to a qualified private retirement plan. Under the terms of the options available to him at the time of his retirement, Mr. Allard selected an option providing for lifetime benefits with a guaranteed ten-year minimum, but such election was not signed by Mrs. Allard. Mr. Allard began receiving retirement benefits of $1,008.00 per month beginning June, 1982, and has received monthly benefits since that time.

On April 25, 1983, Martha Parten Frech, Mrs. Allard's sister, offered a will dated January 12, 1983 into probate. Mr. Allard contested the will and offered a later will dated March 22, 1983, which was rejected by the court. After the will offered by Mrs. Frech was admitted to probate, as independent executrix, she filed an "Inventory, Appraisement, and List of Claims" to which Mr. Allard objected. The issues presented during trial were limited by agreement of the parties to those concerning the value and characterization of certain property. After a trial on the merits, the trial court approved the inventory and signed the approval order awarding the decedent's estate one-half of the husband's retirement benefits, as well as one-half of the sums on deposit in a joint savings account containing a survivorship provision. The trial court made additional findings which are not challenged by the parties and thus not before this court.

The court of appeals affirmed the judgment of the trial court regarding the husband's retirement benefits and the proceeds in the joint savings account. The court of appeals held that the benefits from the husband's retirement plan were properly characterized by the trial court as community property, thus, Mrs. Allard's half-interest in the retirement benefits properly passed under her will to the Allards' daughter and grandchildren. The court of appeals further held that a partition of community funds in Texas is not implicit in the mere execution of a joint tenancy with right of survivorship agreement, and that actual partition of community funds must be accomplished in an active not passive manner. Therefore, in light of the absence of a partition agreement or spousal gift, the court of appeals concluded that the funds in the joint savings account were community property, with no right of survivorship in Mr. Allard. 735 S.W.2d at 317.

The initial question presented for this court's consideration involves the proper method to be utilized in dealing with retirement benefits in instances where the marriage is terminated by the death of the non-employee spouse. In this case, Mr. Allard possessed a retirement plan with General Dynamics in the amount of $102,080.00 which vested in 1982 prior to the death of his wife. Mr. Allard contends that his wife's one-half interest in his retirement benefits should not be allowed to continue after her death and pass under her will to the Allards' adult child and grandchildren. Focusing his argument in part on the inequities involved in allowing "able-bodied young adults capable of supporting themselves" to share in his retirement benefits, Mr. Allard urges this court to apply the result of Valdez v. Ramirez, 574 S.W.2d 748 (Tex.1978) to this case, or alternatively, to adopt the terminable interest rule. We decline to extend the holding in Valdez to the facts in this case. Likewise, we reject Mr. Allard's contention that the terminable interest rule should be adopted and applied in this case.

In Valdez, a United States Civil Service employee had been receiving retirement benefits under the Federal Civil Service Retirement Act for two years when her husband died intestate. In response to the issue of whether the deceased husband's interest in his wife's civil service retirement benefits was inheritable by his adult children of a former wife, we concluded that the wife's retirement benefits remaining after her husband's death were her separate property; consequently, the benefits could not pass by the intestacy of her husband. Valdez, 574 S.W.2d at 751. This decision was primarily based on the preemption of Texas community property law by the requirements of the Federal Civil Service Act which provided for the payment of retirement benefits only to the employee, or in the case of the employee's death, to the surviving spouse and the employee's minor, incapacitated or student children. We held that it would be contrary to the entire contract, policy, and plan of the Federal Retirement Act for nearly one-half of Mrs. Valdez's monthly payments to be taken from her and awarded to her deceased husband's adult children. Valdez, 574 S.W.2d at 750. Mr. Allard argues that the same equitable result should be reached in this case.

We hold that the court of appeals correctly distinguished Valdez from the instant case. Valdez involved a federal retirement plan pursuant to a federal statutory scheme in which the employee-spouse exercised the joint and survivorship option provided by her retirement plan. Contrastingly, the instant case is distinguishable in that it involves a private retirement plan in which Mr. Allard selected an option, which was not signed by the deceased, guaranteeing him retirement benefits for ten years. The retirement plan in this case contained a joint and survivorship option which Mr. Allard declined to exercise. Consequently, the holding and result in Valdez is distinguishable here.

In further support of his position, Mr. Allard argues that according to Valdez, retirement benefits are non-probate assets, thus not subject to disposition by will and not subject to the rules of intestate distribution. Valdez, 574 S.W.2d at 750. However, it is important to note that while Texas law recognizes provisions in pension plans as being nontestamentary in nature, section 450(a)(1) and (3) of the Texas Probate Code permit benefits under pension plans to "pass to a person designated by the decedent." Therefore, since there is no indication that the decedent, Mrs. Allard, agreed to the disposition of the retirement benefits, there appears to be no valid reason to deny Mrs. Allard the opportunity to dispose of her community interest in the retirement plan. Thus, we hold that in light of the settled marital property rule in Texas that a spouse has a community property interest in that portion of the retirement benefits of the opposite spouse earned during their marriage, the retirement benefits in this case were properly characterized as community property, and thus, one-half of such benefits was properly included in the wife's estate. See Taggart v. Taggart, 552 S.W.2d 422 (Tex.1977); Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976); Busby v. Busby, 457 S.W.2d 551 (Tex.1970).

Additionally, Mr. Allard urges this court to adopt the terminable interest rule which provides that the non-employee spouse's pension interest terminates at the death of either spouse. See Matter of Estate of Allen, 108 Cal.App.3d 614, 166 Cal.Rptr. 653 (Court of Appeals [1st Dist.] 1980); Waite v. Waite, 6 Cal.3d 461, 99 Cal.Rptr. 325, 492 P.2d 13 (1972); Benson v. City of Los Angeles, 60 Cal.2d 355, 33 Cal.Rptr. 257, 384 P.2d 649 (1963). In spite of the application of the rule by the California courts in these three cases, it has been widely viewed in California as creating an unfair deprivation and misallocation of the non-employee spouse's full share of pension benefits representing community property accrued and accumulated during the marriage to the employee spouse. See Taylor v. Taylor, 189 Cal.App.3d 435, 234 Cal.Rptr. 486 (Cal.Ct.App.1987). California's struggle with the terminable interest rule culminated in 1986 with an amendment to the California Family Law Act specifically requiring the court to assure that each party receives a full community property share of the retirement plan. Cal.Civ.Code Ann. § 4800.8 (West.Supp.1987). This legislation was intended to abolish the terminable interest rule and has since been held to be retroactive. Taylor, 234 Cal.Rptr. at 491. We find no reason in this case to set aside the basic principles of community property law, which when applied in this case, entitled the non-employee spouse to her share of the retirement benefits. In regard to Mr. Allard's request that this court adopt the terminable interest rule, we decline to do so and conclude that such matter is better left to the legislature.

The second point raised by Mr. Allard challenges the court of appeals' finding that one-half of the sums on deposit in a joint savings account having a notation of a joint...