“What are ‘Gillmore’ Rights?”

Gillmore rights are the rights to retirement proceeds by a party with an interest in a retirement plan that has not been segregated (such as a pension plan divided by the time rule) where the party who is the holder of the plan could retire, but does not.

So simply put: they are rights that are triggered when someone refuses to retire, even though eligible, thus delaying retirement benefits to the other party. They come from a California case called Marriage of Gillmore (1981) 29 C3d 418.

It is important to note that these rights are triggered whether or not the party who does not retire has a good reason for doing so or not: they are automatically triggered by the party who is working becoming eligible for retirement.

When that happens, the party who has a share of the benefits may file a motion to be awarded their share of the monthly payment that would be received. Some plans can pay the amount directly to the beneficiary; others, such as most government plans, will not do so, and the court will have to make an order that the party who is working pay that amount directly to the other party.

This can be a significant issue if not discussed during settlement of a case: if one party plans to keep working past retirement age, and both parties are all right with that, Gillmore rights can be specifically waived.

In addition, it is important to keep in mind that if the party holding the retirement is paying spousal support, then that amount can be revised downward upon the granting of Gillmore rights because the paying party’s income is going down, while the receiving party’s income is going up. It often makes sense to file a spousal support modification motion to be heard concurrently with the Gillmore rights motion.

You should always discuss Gillmore possibilities with your attorney, as they impact your financial planning in the future and after your divorce.

DISCLAIMER: All legal principles quoted are valid as of the date of writing in the State of California. However, you should NEVER base your actions on a legal article, blog, or internet story, as facts in real life are complicated. You should have your case evaluated by an attorney experienced in the area of law needed for your case. In addition, there are often exceptions and potential changes to results that occur due to facts that you may think are trivial or unimportant. This article should not be taken in any way as legal advice on your specific legal matter.