## Facts

- Charles Austin Burch and Mary Elizabeth Burch divorced on January 4, 1979; the decree divided community property and awarded Mary a community-property share of Charles’s retirement benefits, payable as a portion of each monthly benefit check when Charles began receiving benefits.
- The retirement benefits were earned during marriage through Charles’s employment, with contributions made from earnings treated as community funds.
- Mary died on October 16, 1981, leaving her entire estate to her sister, Jennetta Schweitzer.
- Charles began receiving retirement payments on January 1, 1982, and refused to pay Schweitzer any portion corresponding to Mary’s awarded share.
- Schweitzer sued Charles for money due, asserting that Mary’s awarded share survived Mary’s death and passed to Schweitzer as devisee.
- The district court granted summary judgment for Schweitzer, holding that Mary’s court-awarded share did not terminate at death merely because it was payable “as received,” and that it was a devisable property right.
- Charles appealed.

## Issues

1. Whether a former spouse’s community-property share of retirement benefits awarded in a divorce decree, payable as a portion of monthly checks, survives the former spouse’s death as a devisable property right.
2. If the interest is devisable, whether the devisee’s recovery may extend beyond the community’s actual interest in the retirement plan and the plan’s governing terms.

## Decision

- The New Mexico Supreme Court affirmed in part and reversed in part.
- The court agreed that vested retirement rights earned during marriage are community property subject to division and that the non-employee spouse’s awarded share is a property interest rather than a personal right that ends at death.
- The court held that the awarded community share does not terminate solely because the decree structured payment “as benefits are received.”
- The court reversed to the extent the summary judgment granted relief broader than the community’s actual interest in the retirement program and broader than what the retirement plan’s terms allow, and remanded for modification consistent with those limits.

## Legal Principles

- Vested retirement benefits earned during marriage are community assets divisible upon divorce.
- An ex-spouse’s court-awarded community share of retirement benefits is a property interest that may pass by devise and does not end automatically at the ex-spouse’s death merely because payment is periodic.
- Any devise or enforcement of that share is limited to the community’s interest as fixed by community-property law and bounded by the retirement plan’s vesting, payout, and other governing terms.
- On summary judgment, a court may recognize the survivable, devisable character of the community interest, but the remedy must be confined to the legally and contractually defined scope of the plan benefits.

## Conclusion

The court treated the former wife’s divorce-awarded share of retirement benefits as a survivable, devisable community-property interest, but required that any recovery be limited to the community’s actual interest in the retirement benefits and constrained by the retirement plan’s terms.


Schweitzer v. Burch, 711 P.2d 889 (N.M. 1985)