Request By:
Ms. Connie Redmon
Office of the City Manager
City of Richmond
P.O. Box 250
Richmond, Kentucky 40475
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question relative to the policemen's and firemen's pension fund in cities of the third class. You state that a widow of one of the city's firefighters was remarried and her pension payment was terminated. One month later the marriage was annulled. Your question is whether the annulment entitles the woman to begin receiving again the pension payments she had been previously receiving.
You do not state whether the pension system involved here exists pursuant to KRS 95.520 to 95.620 or KRS 95.621 to 95.629. However, neither system contains any provisions which deal with your specific question. Both systems merely provide for the payment of a pension to the widow "while unmarried." See KRS 95.550(1)(c) and 95.624(3)(c).
In 60 Am.Jur.2d Pensions and Retirement Funds, § 59, it is written that "It has generally been recognized that an annulment of a widow's remarriage restores her to the pension rights held by her as the widow of the first husband, prior to the remarriage. " Furthermore, in an annotation in 85 ALR2d 242, 249, the following appears:
"Where the right of a widow to pension benefits had been terminated by a remarriage, and the remarriage was subsequently annulled, it has generally been held that the pension rights held by her prior to the remarriage should be restored for the reason that an annulment ordinarily renders the marriage void ab initio."
The Court, in Cottam v. City of Los Angeles, 184 Cal. App.2d 523, 7 Cal. Rptr. 734, 85 ALR2d 238 (1960), said that a policeman's widow who was receiving a pension from the city, which was payable during her life or until she remarried, and whose second marriage was annulled for fraud, is entitled to have her pension benefits restored as of the date of annulment. In addition, in Boyle v. Philadelphia Police Widow's Pension Fund Association, 219 Pa.Super. 230, 280 A.2d 577 (1971), the Court stated in part as follows:
"It is our opinion, therefore, that under the agreed statement of the facts, plaintiff is entitled to a resumption of the pension benefits as of the date of the decree of annulment. In coming to this decision, we bear in mind what was noted by the California Court in the Cottam case, 'pension legislation must be liberally construed and applied to the end that the beneficent results of such legislation may be achieved.'"
Your letter does not indicate in what state the annulment was obtained. Kentucky has a statute which sets forth circumstances pursuant to which a court may declare a marriage invalid. Even though that particular statute (KRS 403.120) merely refers to marriages which are "prohibited," the Court, in Ferguson v. Ferguson, Ky.App., 610 S.W.2d 925 (1981), said that the legislative intent was to encompass marriages which are prohibited and void. In addition, KRS 402.020 specifically sets forth those marriages which are prohibited and void and KRS 402.010 deals with marriages which are incestuous and void.
Although there is no reported Kentucky case dealing with the question you have presented, it is our opinion that where the right of a fireman's widow to pension benefits from a city of the third class had been terminated because of her remarriage, but the remarriage was subsequently annulled, the pension rights held by her prior to the remarriage should be restored.