Military Benefits

Community property is defined as all property that is acquired during the marriage, other than a gift or inheritance.  In other words, community property is the property acquired after marriage or after registration of a state registered domestic partnership by either domestic partner or either husband or wife or both[i].  In community property jurisdictions, spouses equally own all community property.  In the U.S., community property derives its existence from express legislation.

According to community property statute, a liability of a stepparent to protect his/her stepchildren terminates only by legal separation, marriage dissolution, or death[ii].  Similarly, under community property statutes, property and pecuniary rights owned by a spouse before marriage and that acquired by him/her afterwards by gift, bequest, inheritance, will not be subject to the debts or contracts of his/her spouse.

However, some military benefits are granted to the decedents other than the community property benefits.  Service bonds are issued in lieu of a certificate given to the decedent upon his/her discharge from military service which shows that s/he was entitled to additional compensation that belongs to the separate estate of the deceased and not the community.  It is to be noted that these bonds will be issued for war services performed by the deceased as a soldier prior to his/her marriage, although the bonds were not delivered until after his/her marriage.

Formerly, a state court was not able to divide a military pension as community property or quasi-community property because the federal scheme of military retirement benefits preempted state community property law[iii].  However, a state court can treat disposable retired or retainer pay payable to a member for pay periods either as property solely of the member or as property of the member and his/her spouse according to the law of the jurisdiction[iv].

Vested military pensions are considered as community property.  However, a spouse has no vested interest in an opposite spouse’s military retirement pension[v].  At the same time, a state court lacks the authority to treat military disability benefits as community property subject to division in a partition proceeding[vi].  It is to be noted that federal preemption will not bar treating vested federal military pensions as community property[vii].  Some statutes authorize modification of certain community property settlements, judgments, or decrees to include a division of military retirement benefits.  However, this is discretionary in nature and modification is impermissible if the result is inequitable[viii].

[i] Rev. Code Wash. (ARCW) § 26.16.030

[ii] Harmon v. DSHS, 134 Wn.2d 523, 528 (Wash. 1998)

[iii] In re Marriage of Olsen, 24 Cal. App. 4th 1702 (Cal. App. 2d Dist. 1994)

[iv] Casas v. Thompson, 42 Cal. 3d 131 (Cal. 1986)

[v] Flowers v. Flowers, 624 So. 2d 992 (Miss. 1993)

[vi] Wallace v. Fuller, 832 S.W.2d 714 (Tex. App. Austin 1992)

[vii] Aloy v. Mash, 38 Cal. 3d 413 (Cal. 1985)

[viii] In re Marriage of Carpenter, 188 Cal. App. 3d 604 (Cal. App. 1st Dist. 1986)


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