Attorney General of Arkansas — Opinion
Opinion Delivered September 4, 1996
WINSTON BRYANT, Attorney General
Ms. Cathyrn Hinshaw Executive Director Arkansas Fire Police Pension Review Board 124 W. Capitol, Suite 940 Little Rock, Arkansas 72201
Dear Ms. Hinshaw:
This opinion is being issued in response to your recent question regarding spouse and dependent benefits under a local fire pension fund. More specifically, you have asked:
May a spouse and dependent children draw benefits from a local fire pension fund which total more than the benefits to which the deceased, full-paid member of the fire fund was entitled?
It is my opinion that the spouse and dependent children of a deceased, full-paid member of a local fire pension fund can, together, receive benefits in an amount that totals more than the benefits to which the deceased member was entitled.
My conclusion regarding this matter is based upon A.C.A. § 24-11-820, which states in pertinent part:
(2) In the case of full-paid fire fighters’ classifications, a monthly pension shall be paid for life to the spouse in the amount of the pension received by the retired fire fighter at the time of his death, or the amount of the pension to which the member would have been entitled on the day he died had he been retired, but in no event shall the benefit of the spouse be less than three hundred fifty dollars ($350) per month, regardless of whether the spouse has already been receiving pension payments, and regardless of whether the fire fighter was on active duty or retired.
(b)(1) In addition to the monthly pension provided in subsection (a) of this section, the board of trustees may order and direct the payment of, in the case of volunteer or part-paid fire fighters, the sum of twenty-five dollars ($25.00) per month for each child under nineteen (19) years of age who has not completed high school and, in the case of full-paid fire fighters, the sum of one hundred twenty-five dollars ($125) per month for each child under nineteen (19) years of age who has not completed high school.
A.C.A. §§ 24-11-820(a)(2) and (b)(1).
Clearly, if the spouse is entitled to receive the same benefits that the deceased member would have been entitled to receive, and if each dependent child may (and does) receive an additional amount, the total amount received by the family will exceed the amount that the deceased member would have been entitled to receive. The law does not set an upper limit on the amounts of benefits received by spouses and dependents, other than the limitations inherent in the provisions setting the parameters for payable benefit amounts.
It should be noted that the children’s receipt of benefits is discretionary with the Board. That is, the Board may choose whether or not to award benefits to the children. The spouse’s entitlement to benefits, however, is not discretionary.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Suzanne Antley.
WINSTON BRYANT Attorney General