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Opinion No. 69-344 (1969) Ag, (1969)

Court: Oklahoma Attorney General Reports Number:  Visitors: 7
Filed: Dec. 05, 1969
Latest Update: Mar. 03, 2020
Summary: Firemen's Pension — Divorce — Widow Under 11 Ohio St. 368a [11-368a] (1968), it is expressly provided that upon remarriage the pension payable to a widow of a deceased fireman pensioner ceases. Such pension is not revoked by a subsequent divorce. The Attorney General has considered your request for an official opinion wherein you state: "We respectfully request your opinion as to the eligibility of the widow of a deceased fire department employee to receive her husband's pension under 11 Ohio St
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Firemen's Pension — Divorce — Widow Under 11 Ohio St. 368a [11-368a] (1968), it is expressly provided that upon remarriage the pension payable to a widow of a deceased fireman pensioner ceases. Such pension is not revoked by a subsequent divorce. The Attorney General has considered your request for an official opinion wherein you state: "We respectfully request your opinion as to the eligibility of the widow of a deceased fire department employee to receive her husband's pension under 11 Ohio St. 368a [11-368a] (1969). "The fact situation is as follows: At the time of the fireman's death in 19587 he was eligible and drawing a retirement pension. His widow began receiving and collected this pension payment until April, 1969, when she remarried. The receipt of this pension ceased, as provided for in 11 Ohio St. 368a [11-368a] (1969), upon her remarriage. On October 3, 1969, the widow received a divorce from her second spouse, and she is now desires of having her pension reinstated. "While 11 Ohio St. 368a [11-368a] (1969), provides for the payment to cease upon the event of the widow's death or remarriage, it does not provide for the situation above described. Can the widow be reinstated to collect the pension?" Title 11 Ohio St. 368a [11-368a] (1969), provides in part as follows: "In the event of the death for any cause of a fireman who at the time of his death was drawing a pension, or who at the time of his death (whether death occurred while on duty but not in or in consequence of the performance of duty or while on vacation or off duty) was eligible, upon written request to retire and draw a pension, the widow of such person shall be paid an amount not to exceed One Hundred (100%) percent of said pension. In the event of the death or marriage of the widow her pension shall cease, and should there then be but one (1) living child same shall receive an amount equal to Forty (40%) per cent of the pension, but if there then be more than one (1) living child, each child shall receive an amount equal to Twenty-five (25%) per cent of the pension. The pension of each child shall continue until same shall have married or attained the age of eighteen (18) years." (Emphasis added) We find no provision in the Oklahoma statutes providing for the reinstatement of a widow's pension after the same has terminated. The general rule regarding the remarriage of a woman receiving a pension as the widow of a pensioner is found at 70 C.JS., Pensions Section 4b: "Except where otherwise expressly provided by statute, the remarriage of a woman receiving a pension as a widow of a pensioner terminates her right to the pension thereafter, although she divorces her second husband or her second husband dies, and although the second marriage was illegal when she did not repudiate it or when she procured its dissolution by divorce instead of having it annulled for illegality. Where the wife of a pensioner obtains a decree of divorce absolutely dissolving the marriage, she is not entitled on the death of the pensioner to be placed on the pension rolls as his widow." While we find no Oklahoma cases ruling on this point, we note that the general rule has been uniformly followed in other states. It is therefore the opinion of the Attorney General that under Title 11 Ohio St. 368a [11-368a] (1969), it is expressly provided that upon remarriage the pension payable to a widow of a deceased fireman pensioner ceases. Such pension is not revived by a subsequent divorce. (W. Howard O'Bryan Jr.)

Source:  CourtListener

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