Trooper’s Widow Loses Battle To Keep Non-Custodial Children From Sharing Survivor Benefits

Mark Zach was a member of the Nebraska State Patrol Retirement System. When Zach died in 2002, he was survived by his wife and seven children. Zach’s wife was the mother of four of his children; Zach’s three other children were from a previous marriage, and resided with their mother.

The System awarded a share of survivor benefits to all seven children. Zach’s wife, contending that the benefits should only have been shared among her children (which would have increased each child’s allocation), challenged the System’s decision in court. The Nebraska Supreme Court upheld the distribution of survivor benefits among all seven children.

The controlling statute could be read two ways. One provision of the statute clearly provides that only children in care of the “surviving spouse” were entitled to receive survivor benefits. Another section of the statute provided seemingly to the contrary that “if there is more than one child of the officer under the age of 19 years at the date of the officer’s death, the benefits shall be divided equally among such children.”

The Nebraska Supreme Court decided that the apparent conflict in the statute posed an ambiguity. The Court then turned to the legislative intent behind the statute. The Court found that “throughout the history of the statute, it is clear that the Legislature intended that a deceased trooper’s annuity would benefit his or her surviving children whether or not the trooper left a surviving spouse. When you’re guided by the Legislature’s original intent to provide benefits to the surviving members of the trooper’s family, it would be inconsistent with the intent of the Legislature to construe the statute so that Zach’s three dependent children residing with his former spouse would be completely cut off from this benefit simply because they were not in the care of his widow.”

Zach v. Eacker, 716 N.W.2d 437 (Neb. 2006).

This article appears in the September 2006 issue