Forde v. Cory

[436]

Opinion

FRIEDMAN, Acting P. J.

This mandate action against the State Controller involves the amount of death benefits payable from the Judges’ Retirement Fund to the survivors of a deceased superior court judge.

Plaintiff and appellant Forde is executor of the will of Judge Thomas Fraga, who served as judge of the Contra Costa Superior Court from 1957 until his death in February 1971. In 1969 Judge Fraga and his wife were divorced; he was awarded custody of their two minor sons. In September 1970 he filed with the Secretary of State a document designating appellant Forde as his trustee-beneficiary to receive his retirement funds if he died before retirement. The Judges’ Retirement Law provided, as it still does, a lump sum death benefit for the designated beneficiary of a judge who died befqre retirement. The lump sum benefit consists of a refund of the accumulated contributions deposited by the judge during his lifetime (Gov. Code, § 75104)

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plus a sum calculated by length of service but not exceeding one-half of the judge’s last annual salary. (§ 75104.5.)

In 1961 the Legislature had adopted a plan permitting a judge to provide survivor benefits for his spouse if he died before gaining retirement eligibility. The new plan was described in article 5 of the Judges’ Retirement Law. Section 75090 gave incumbent judges an election to select a monthly survivor allowance for the surviving spouse. Section 75092 required the judge to contribute án additional $2 per month to the retirement fund. Section 75091 fixed the amount of the survivor benefit. It called for an allowance equal to 1.625 percent of the monthly judicial salary for each year of the judge’s service, but placed a ceiling of 37'/2 percent on the maximum allowance. The allowance was payable until the spouse died or remarried. (§ 75091.) The allowance was payable in lieu of — and not in addition to — the lump sum death benefit. The latter objective was expressed in the last sentence of section 75091, declaring: “If an allowance is paid under this section, no payment shall be made pursuant to Section 75104 or Section 75104.5.”

The same objective was also expressed in section 75093, which stated that a spouse receiving a survivor’s allowance “shall have no other claim with respect to ... any other provisions of the Judges’ Retirement Law.”