## Facts

- Ralph Lack became a Texas fireman in 1953 and participated in a statutory firemen’s pension plan funded by payroll deductions and employer contributions.
- Ralph married Margaret in 1954; pension contributions continued during the marriage from his earnings and employer contributions tied to his employment.
- Ralph and Margaret divorced in 1965; the divorce decree did not address any pension-plan interests.
- Ralph later married Nora.
- In 1975, Ralph died in the line of duty.
- Under the governing pension statute, if a fireman died “leaving a widow” (and/or minor children), specified death benefits were payable from the pension fund to the widow (and children).
- The pension board paid statutory death benefits to Nora as Ralph’s widow.
- Margaret sued Nora and the pension plan, claiming a community-property interest in the death benefits based on contributions made during Margaret’s marriage to Ralph, and sought a pro rata share.

## Issues

1. Whether an ex-spouse has a community-property interest in statutory fireman death benefits paid to a later spouse designated by statute as the “widow,” when plan contributions during the earlier marriage were made from community funds and the divorce decree was silent.
2. Whether the statutory right to death benefits is a divisible, vested community asset during the fireman’s life, or only an expectancy that vests at death in the then-qualifying statutory beneficiaries.

## Decision

- The court affirmed summary judgment for Nora and the pension plan.
- Margaret had no community-property interest in the statutory death benefits paid to Nora.
- The statutory death benefit was a contingent expectancy during Ralph’s life and vested only upon his death in the person who met the statute’s definition of “widow” at that time.

## Legal Principles

- Rights to benefits under a public pension plan created by statute are determined by the statute’s terms.
- Statutory survivor/death benefits that become payable only upon the employee’s death are inchoate during the employee’s life and vest only when the statutory conditions occur.
- Community contributions to a statutory pension plan do not, by themselves, create a divisible community interest in a separate statutory death benefit payable only to designated survivors.
- Property omitted from a divorce decree remains subject to post-divorce division only if it existed as a present, vested property right at the time of divorce; a mere expectancy is not divisible.

## Conclusion

The court held that statutory fireman death benefits payable upon death “leaving a widow” vest only at death in the person then qualifying as the widow, so a former spouse cannot claim a community-property share of those death benefits based solely on contributions made during the prior marriage.


Lack v. Lack, 584 S.W.2d 896 (Tex. Civ. App. 1979)