widow's rights to pension benefits

When my husband and I lived in Oregon, he worked for the State of Oregon and was a member of PERS. We moved from Oregon in 1995, and he left his vested PERS intact until he could retire.

Background: He was married to someone else early in the 1970's, worked for the State of Oregon then and showed his 1st wife as beneficiary. He left State employment roughly 10 years later and withdrew his PERS funds. He and 1st wife divorced in 1984 and nothing was mentioned in the decree about the pension because there were no funds left.

I met him in 1987 and we married in 1988, one month after he was again hired by the State of Oregon. He waited the six month period until he could rejoin PERS.
He left his job there when we moved to another state. He had not received his annual statements until 1999 when he requested them to be mailed. He talked to someone at PERS who told him there was no designated beneficiary so he asked for new forms so he could designate me, as his wife. He was told he had to request the forms in writing, which he did. In the meantime, he got his annual statement showing NO DESIGNATED BENEFICIARY. He received the forms and completed them, and returned them to PERS. And now PERS says they did not receive the new form. (I know he completed it and am sure he sent it back-I can only surmise that it could have been lost in the mail between Arkansas and Oregon.)

Prior to receiving anything more from PERS, he passed away in Jan. 2000. When I contacted them and sent the death certificate, they assured me that all would be OK for me, since a spouse would be the first beneficiary according to law when there was no designated beneficiary. Here's the kicker - they did some research and found that in 1972 he named his 1st wife when he worked for the State before and they say that she will be the recepient of his pension funds, even if he had withdrawn previously.

If they made a mistake on his annual statement and misled him to believe that there was no named beneficiary, do I have any chance to be awarded my late husband's retirement? Does the doctrine of substantial compliance come into play here? And, don't they have a fiduciary responsibility to make sure that the information they give on the statements is true and not misleading?

I have been making appeal after appeal, with the Board and they keep on insisting that the ex will prevail. (By the way, my husband did not owe her anything, ie: child support or anything else - she is just greedy. And she has been married to someone else almost since their divorce. She thinks she "deserves" the money because of "suffering" back when they split up so long ago. At least that's what she told me on the phone when I asked her why she didn't sign the paper to revoke her designation.)
I guess I'm a little bitter, but I would like to get on with my life. I am working 2 jobs just to keep the bills paid and at 55, it's not easy keeping this pace. My husband had a heart condition and couldn't afford insurance, even if they would insure him, so the retirement money would at least give me a chance to give up one of my jobs.

Any advice someone could give me would be appreciated.

Thank you
jawilk

do you still have the stating NO BENFICIARY?that might help some.but my best advice is to contact Grandma B on this forum if possible cause she knows alot about government retirement-good luck

Thanks for the reply, Curtisd. Yes, I have all the paperwork. There was even a new annual statement that he received after he died that still showed "No designated beneficiary". The board has copies of all of it, too, including a very small annuity from his Oregon employment, with me shown as the beneficiary.

I was afraid that my situation wouldn't get a reply because it was so complicated. Have done a lot of research on case law on the internet and have never seen anything quite like this.
Maybe GrandmaB can help. I need to have some hope.
Thanks again.
jawilk1

Sorry to report that I have no familiarity with OR state pension laws. However, common sense would seem to negate the first wife's right to the pension. He had a break in service after having withdrawn all funds from the earlier account. Since the account for the new service to the state had no named beneficiary, one would think it should be distributed "by law" which would mean to a surviving spouse first.

Two years is a long time for this to have gone on. Have you had any contact with OR attorneys? Your best bet might be to get an appointment with a local attorney who gives free initial consultations. I wouldn't give up. Best of luck to you.

Thanks for the reply, Grandma B.
I do have an Oregon attorney, who my stepmom found for me. I don't know what his credentials are in this area, but I didn't have the means to travel back to OR to find one myself. I spoke with a lawyer here in AR, who advised me that an OR atty. would be in a better position to help me. The OR atty. is $150 hr and is costing me a lot of money I can ill-afford. I have done some research and came up with some things he apparently never thought of. Unfortunately, he says that I can't produce new evidence this next time because it's just 3 judges who will look at the facts as they have been presented before and rule on that basis. My new "evidence" is that it seems that the doctrine of substantial compliance should be considered, besides the misleading statement that there is no designated beneficiary.
The OR statute for PERS states that the last named beneficiary on file will be the recipient, even if the employee had previously withdrawn his PERS account. (Stupid statute) BTW - I am now working for an atty here that was a Circuit Court judge before, and he says that he thinks there should be no question but that I should be the beneficiary.
There are cases in this country where the deceased member attempted to change the beneficiary, and did not quite get it done (various reasons) and the Courts ruled in the new beneficiary's favor, by applying the doctrine of substantial compliance. Do you feel that I have a chance with this on this basis, or maybe something else I haven't thought of? I'm just grasping here.
Thanks for your time.
jawilk1

You're right about that OR statute being weird. In my mind, she was not the last-named beneficiary on the PERS account that was in effect when he died. He had an account with her as beneficiary, and it was closed and his employment terminated. It would seem reasonable that when he returned to employment with the state, he started a new PERS account.

Hiring counsel is expensive, and if you don't win, you will be out the money. However, if he can win the appeal for you, his services will have been cheap.

Is the other small annuity which lists you as beneficiary also with the State? If so, why a separate annuity there?

Grandma B
He took out the annuity through work about 4 years after he was rehired by the State of Oregon. It is under VALIC, if you are familiar with that organization. It's value is only a couple of thousand. I'm not sure why he started it, unless just a way to have an investment. I know he talked about how it would grow and eventually bring some pretty good gains over the long haul. At the time he took it out, we had not made any plans in moving. The company I had worked for there in OR since 1969 requested we move to WA in 1995 to keep my job. Since we were planning on moving back to my hometown in AR eventually, we gave it a shot and stayed in WA a couple of years before we said goodbye and came back here. I was going to be a housewife for the first time in my adult life. Of course, that was short-lived, because he passed away less than 3 years later, and now I'm working a full-time job and a part-time job, trying to keep going. Pay scale not good here, but the prices are same as anywhere.

I know that if I win the appeal, the money I am spending on this lawyer will be well worth it. It's just hard to keep sending money right now and I get a little blue when I hear another "sorry, it didn't go through". I'm tired and frustrated at this point.
jawilk1

got a question-if no new evidence can be introduced at the next hearing what does your lawyer think is going to make them change the decision this time?was there a procedural error or a misapplication of the law?and if it was a such a sure thing for you to win,why has it gotten this far?

It is my understanding that all the previous appeals have either been to the PERS board and/or an administrative law judge. The next one will be to the Court of Appeals.
Apparently, there is a set way to appeal these kinds of things, and we have to play it their way. You go through the hoops with the board, then the administrative law judge, etc. I don't know at what point the appeals come to an end, so I don't know at this point when it's over (unless someone rules in my favor, of course). I'm just playing their game and will continue until they say it's final, I guess. It's so confusing!

As for the new evidence, perhaps after this next round to the Court of Appeals, maybe we can enter the new "evidence"and appeal again. I don't know for sure how that will work yet.

jawilk1

do you mean that you don't know why (what grounds) the case is being appealed on?if its anything like a federal decision then the only thing being considered is whether there are grounds to re-try the original case and that will be only if the administative judge erred in his interpretation or application of the law or of the facts that were introduced.if they find he didn't then the decision will stand.so ask your lawyer what procedural error occurred that would change the ruling.

It's all a bit confusing, but my lawyer filed a Petition for Reconsideration in order to get an Appelate Court review, which is the next step. The Petition outlined points in which the previous Order was in error and conflicting points to some OR Statutes, etc. I guess that is what you are referring to as "grounds". In one of the letters I received, it specifies that you have to file a Petition for Reconsideration before you file for Judicial review of the appeal. Does this make sense to you? It's somewhat "Greek" to me.
curtisd, are you in the legal profession or? You sound like you may know what you are talking about, unlike some others in this forum that just throw out comments sometimes.
jawilk1

i'm glad to hear that if he found those "conflicting points"-because what it means is that the court may have overlooked something procedural,not evidentary,that may have affected the decision to go against you in the first trial,if so,you get another hearing at which time you can introduce the new "evidence".but if they decide that the conflicting points would not have affected the outcome you will have to appeal it to a higher court and they will decide if the judges on the appeal panel had been in error.but the fact that your lawyer found something is very reassuring. good luck!

Thanks, curtisd