Retirement Benefits: Gillmore Election

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When benefits in a defined benefit retirement plan are matured by the employee chooses to continue working, the nonemployee spouse is entitled to demand payment of his or her share without waiting for the employee to retire.  Marriage of Gillmore (1981) 29 C3d 418.  It appears that division of the community interest may be accomplished by either the asset distribution (cash out)  method (i.e employee buys out the nonemployee’s share of the benefits by paying the present value of the nonemployee’s share), or by an in-kind division  (i.e. payment of the nonemployee’s share on a monthly base).  Although Gillmore does not specify how the monthly amount to be paid under an in-kind division is to be determined, it appears that the payments should be the amounts the nonemployee would have received if the employee had retired at the time of the election.  Marriage of Jacobson (1984) 161 CA3d 465.

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