Navigating the Ohio Appellate Split: Pension Survivor Benefits and Divorce Decrees

Editor’s Note: A big thank you to Magistrate Thomas D. Dawson for making sure this important Opinion didn’t miss my radar. This issue is near and dear to me, and I’ll be following further developments closely.

Plymale v. Plymale, 4th Dist. Jackson No. 23CA13, 2025-Ohio-911
Disparate Rulings, Unified Risk: Why the Matter of Mere Words Matters More Than Ever

Dated: March 12, 2025
Affirming

Ohio's appellate districts are divided on a critical issue affecting divorced families and pension survivor benefits, creating uncertainty and potentially inequitable outcomes for similarly situated parties. The recent Fourth District decision in Plymale v. Plymale, highlights this troubling split and underscores the need for careful drafting in divorce proceedings.

The Plymale Case: Facts and Holding

In Plymale, a 1991 divorce decree required Robert Plymale to designate his ex-wife, Sally Ann, as a 25% beneficiary of his OPERS (Ohio Public Retirement System) survivor benefits. The parties’ agreement read, in relevant part:

The parties hereto are aware of the pension and retirement benefits available to Robert Duane Plymale and the disparity between such benefits and the lack of retirement benefits available to Sally Ann Plymale and hereby agree that at the time Robert Duane Plymale commences receipt of such benefits, Sally Ann Plymale shall be deemed the vested owner of twenty-five percent (25%) of such benefits and shall be paid a sum equal to such percentage by direct assignment. . . Robert Duane Plymale will continue to maintain the beneficiary designations for such benefits in favor of Sally Ann Plymale.

However, Robert later remarried and died before making the required designation. When his widow received the statutory survivor benefits, Sally Ann sued to establish a constructive trust. (A constructive trust is an equitable remedy where a court finds that a person holding legal title to specific property cannot retain it in good conscience and must transfer it to the rightful beneficiary.)

The Fourth District canvassed other cases within and outside the district, and also the Supreme Court of Ohio's decision in Cosby v. Cosby, (6 Ohio St. 3d 228, 2002-Ohio-4170), with the Plymale Court ultimately holding that divorce proceedings could not circumvent the statutory provisions for the distribution of death benefits.

This author cautions that many courts have relied upon and interpreted Cosby too narrowly. Cosby bars constructive trusts only where the decree does not create a competing equitable interest, and where the statutory framework does not allow such interests to be created. It does not preclude constructive trusts imposed on recipients of benefits when the plan allows alternate designation and the decree clearly sets forth that obligation.

Critically, the Plymale Court, in its reliance on Cosby, appears to disregard several key distinguishing factors: OPERS allows beneficiary designations such as the one provided in the decree; divorce decrees can designate former spouses as beneficiaries; and this particular divorce decree specifically addressed survivor benefits.

The Broader Problem: A Significant Appellate Split

The Plymale decision represents just one side of a significant split between Ohio's appellate districts. In reaching its conclusion, the Plymale Court examined four cases that went in different directions, all tracing back to the original Supreme Court case, Cosby. Beyond Plymale’s survey of case law, practitioners should be aware that all other districts have chimed in on this conundrum, with similar split outcomes. This inconsistency creates uncertainty for practitioners and unfair results for divorced parties in similar circumstances.

Understanding Cosby: The Foundation Case

The key to resolving this split lies in properly interpreting what Cosby actually held. In that case, the divorce decree discussed only the division of “retirement” benefits, not “survivor” benefits. Cosby’s reasoning was that, under the STRS (State Teachers Retirement System) terms, the right to receive retirement payments does not mature until STRS grants retirement. Until that event occurs, retirement payments are not guaranteed; if a member dies before retirement, neither the member nor the member's estate receive a retirement benefit from STRS. All that would be payable would be a survivor benefit.

Because the decree never mentioned survivor benefits, there was no basis (i.e., no res) to which a constructive trust could attach. Thus, under the STRS statutory framework, the current spouse was the proper statutory beneficiary of survivor benefits. And since the former spouse had no decree-based claim to survivor benefits, the Court declined to impose a constructive trust.

The Problem with Broad Interpretations

It is this author’s opinion that cases like Plymale and other similar district decisions interpret Cosby too broadly. The reality is that in nearly all pension systems, the current spouse is the default, and often technically correct, statutory beneficiary of survivor benefits by virtue of being married to the participant at the time of death.

However, many plans allow the participant to override that default through affirmative designation. The critical question, then, is whether the former spouse could have been the correct statutory beneficiary but for the participant’s failure to act in accordance with the obligations set forth in the divorce decree.

Simply put, Cosby did appropriately hold that a decree cannot circumvent a plan’s statutory provisions. However, Cosby did not extend this holding beyond the blanket prohibition of levying a constructive trust upon the plan, itself. Nothing in Cosby precludes a court from imposing a constructive trust on benefits that were improperly directed due to the participant’s noncompliance, particularly where the decree creates a clear res and the statutory scheme allows for former spouse designation.

The Current Landscape

The split between Ohio's appellate districts creates a troubling situation. The Fourth District's approach in Schrader and Plymale represents a broader interpretation of Cosby's holding than the facts of that case may support. Meanwhile, the Second District's more nuanced approach in Fischbach better aligns with the specific facts and reasoning in Cosby.

A Two-Part Analysis Framework

It is this author’s opinion that courts should apply a two-part analysis when addressing these cases and deciding whether to impose a constructive trust or other equitable remedy:

• First, the divorce decree must squarely address the former spouse's right to survivor benefits. Following Cosby, there must be a basis (i.e., a res) in the decree to which a constructive trust can later attach.

• Second, courts must examine whether the statutory limitations of the particular benefit system would allow the former spouse to have ever been the correct statutory beneficiary. For example, under OP&F (Ohio Police and Fire Pension Fund), former spouses cannot be designated as pre-retirement survivor beneficiaries under any circumstances. In such cases, even if the decree requires the designation, the participant's actions or inactions are irrelevant because the former spouse could never have been entitled to the benefits.

Practical Drafting Recommendations

Until the Ohio Supreme Court resolves this split, attorneys must take proactive steps to protect their clients:

• Always include explicit language addressing both retirement and survivor benefits. Even if survivor benefits are not being assigned to the former spouse, the decree must explicitly state the parties' intentions regarding both types of benefits.

• Research the specific pension system rules before drafting provisions. Understanding the statutory framework is crucial to creating enforceable obligations.

• Provide Multiple Layers of Protection. Beyond the basic decree language, consider implementing several protective measures:

  • Require life insurance equal to the expected survivor benefit value

  • Create claims against the estate as an alternative remedy

  • Specify that any person receiving benefits contrary to the decree holds them in constructive trust for the intended beneficiary

  • Include contractual obligations independent of the pension rights that can be enforced separately

Conclusion

The current split between Ohio's appellate districts on pension survivor benefits creates unnecessary uncertainty and potentially inequitable results. While this author hopes there will eventually be additional Supreme Court guidance, careful drafting that explicitly addresses both retirement and survivor benefits, researches applicable statutory limitations, and provides multiple layers of protection offers the best chance of achieving the parties' intended outcomes.

Practitioners must be aware of this split and adjust their drafting accordingly, ensuring that divorce decrees provide clear, enforceable directions that account for the specific rules governing each pension system. Only through such careful attention to detail can we protect divorced parties from the uncertainty created by this ongoing appellate divide.

Blog Posts are intended to bring attention to developments in the law and are not intended as legal advice for any particular client or any particular situation. Please consult with counsel of your choice regarding any specific questions you may have.