Key Points

  • Public Utilities Code section 12337, which makes EBMUD pension money unassignable and exempt from execution, does not bar a nonmarital partner's share of pension contributions and benefits accrued under a Marvin agreement to hold property as community property.
  • The court held that the partner claims as an owner of the pension, not as a creditor or assignee, applying Phillipson v. Board of Administration's treatment of spouses' community property pension interests.
  • The trial court may order the pension holder to pay the partner half of benefits as he receives them, or award equivalent value after an actuarial valuation, consistent with Crossan v. Crossan.
  • Ogle v. Heim was distinguished as a creditor's effort to collect a child support judgment, and Byrne v. Laura and Allen v. Stoddard as probate creditor's claims not based on community property Marvin agreements.
  • On rehearing, the panel added that section 12337 does not distinguish ownership interests created by contract from those created by statute, and rejected a request for supplemental briefing under Government Code section 68081.

A California appeals court has ruled that a woman who lived with a public utility employee for nearly a decade before they married owns half of the pension he earned during those years. The court held that a state law barring assignment of the pension protects it from creditors, but not from a partner who claims a share as an owner.

A three-judge panel of the First Appellate District, Division Five, affirmed a San Francisco Superior Court order awarding Lisa Seiwald an equal share of the pension contributions and benefits that Nicholas Irias accrued at East Bay Municipal Utility District, or EBMUD, from December 1993 to February 2003. Justice Chou wrote for the court, joined by Acting Presiding Justice Simons and Justice Burns. The panel filed the opinion Sept. 28, 2026, and on Oct. 16 modified it and denied Irias's petition for rehearing without changing the judgment.

The decision applies to an unmarried couple's contract a rule the California Supreme Court adopted for spouses in a 1970 case, Phillipson v. Board of Administration. Under that rule, a spouse who claims a community share of a pension is an owner rather than a creditor, so statutes that shield pensions from assignment and execution do not defeat the claim. The panel noted that pension statutes covering other public employees, including county workers, contain similar protections.

Irias worked at EBMUD from 1987 to 2018. He and Seiwald began dating in 1992, moved in together the next year, bought a home in San Francisco in 1994 and married in February 2003.

Seiwald filed for legal separation in September 2020 and then sued Irias for breach of contract, and the trial court consolidated the two cases. She alleged an oral Marvin agreement, the kind of arrangement the California Supreme Court recognized in its 1976 decision in Marvin v. Marvin, under which unmarried partners may agree to pool their earnings and share property. According to her complaint, the couple agreed to "equally share any and all property acquired and accumulated as a result of such skills, efforts, labor, and earnings."

After a five-day trial on the Marvin claims, Judge Russell S. Roeca found that the couple had an implied-in-fact agreement and held that "each party is entitled to an equal share of such property." Irias then asked the court to clarify that the agreement did not reach his pension. He relied on Public Utilities Code section 12337, which makes EBMUD pension money "unassignable" and "exempt from execution or any other process," meaning creditors cannot seize it to collect a judgment, subject to limited exceptions for child, family and spousal support judgments.

Roeca ruled that even if he could not order EBMUD to pay Seiwald directly, he could order Irias to pay her half of the benefits once Irias received them, or order an actuarial valuation of the pension and award her share "via other means." The Court of Appeal agreed to review only whether section 12337 barred Seiwald's share, and it accepted as true, for purposes of the appeal, the finding that a Marvin agreement existed.

Chou wrote that the statute's bar on assignment "operates as a defense against creditors" and prevents transfers of pension rights to third parties. Seiwald stands on different footing, the court held. "Pursuant to the terms of the parties' Marvin agreement as determined by the trial court, Seiwald has an ownership interest in Irias's pension and is not claiming a right to that pension as a creditor or an assignee under section 12337," Chou wrote.

The panel read the trial court's findings to mean that the couple agreed to treat property acquired in those years as community property, a system that rests, as the state Supreme Court put it in 2020, on the theory "that the property acquired during the marriage by the labor or skill of either belongs to both." Under Phillipson, a spouse's ownership claim to a pension "cannot be described as the levy of execution, garnishment, attachment or assignment of property."

"Because both the contributions of Irias and the added contributions of his employer constitute community property under the Family Law Act, she may receive a share of Irias's pension under the Marvin agreement notwithstanding section 12337," Chou wrote. In the October modification, the panel added that "nothing in section 12337 differentiates between an ownership interest established by contract or by statute."

Irias relied chiefly on Ogle v. Heim, a 1968 California Supreme Court decision holding that a public pension was exempt from a former wife's effort to collect a child support judgment. The panel held that case did not control, because the wife in Ogle "only sought to enforce a child support judgment as a creditor." Seiwald, by contrast, "is a part owner of that pension under the parties' Marvin agreement to treat all property acquired during the Marvin period as community property," Chou wrote.

The court also rejected two probate decisions that Irias raised for the first time at oral argument, Byrne v. Laura and Allen v. Stoddard, in which Marvin claimants had filed creditor's claims against estates. The panel wrote that "being a creditor in a probate proceeding says nothing about whether that creditor's claim is based on a debt owed or an ownership interest."

The panel acknowledged that section 12337's purpose "is to save debtors and their families from want by reason of misfortune or improvidence" and that its ruling "may be somewhat at odds with that purpose." The court said it was following Phillipson and Marvin, which it called "two well-established precedents."

The panel also upheld the trial court's payment options. It cited a 1939 appellate decision, Crossan v. Crossan, which approved awarding a former spouse "other community property equivalent in value to that interest" in a state retirement fund. "We see no reason why the court cannot do the same here," Chou wrote.

Irias was represented by T. Peter Pierce of Richards, Watson & Gershon. Seiwald was represented by Michelene Insalaco of Sucherman-Insalaco.

The affirmance leaves the trial court's interlocutory order in place. Roeca had split the consolidated case into two phases, trying the Marvin claims first and reserving the marital dissolution issues and damages for the second.