concurring.
I concur in the majority’s reasoning and result; however, I feel constrained to point out the decision’s considerable inequities and to voice my belief that something can, and should, be done to prevent the harsh outcome now required under the law.
As explained in the majority opinion, the State Employes’ Retirement System (SERS), through application of sections 5907(e) and 5907(j) of the State Employes’ Retirement Code (Code), 71 Pa.C.S. §§ 5907(e), 5907(j), creates a retirement plan whereby its participants, including those who are married, may designate any person as beneficiary for death benefits and may change beneficiaries at any time. The Code provides no procedure for a participant’s spouse to determine whether he or she is the designated beneficiary, and the Code makes no provision for notice to a spouse when the participant intends to remove the spouse as designated beneficiary. By permitting the exclusion of spouses as designated beneficiaries, I believe that the Code, as reflected in the SERS plan, fails to acknowledge the economic partnership of marriage and the non-participant spouse’s contribution to that partnership, concepts which have been recognized in employee benefit plans governed by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1461, and which provide the mainstay of equitable distribution under our divorce law.
Unlike the SERS plan, under ERISA, a plan participant’s surviving’ spouse is automatically designated as the beneficiary of the participant’s death benefits. 29 U.S.C. § 1055(b)(l)(C)(i).. Further, in order to designate or change a beneficiary, a married participant must provide the written, notarized approval of his or her spouse. 29 U.S.C. § 1055(c)(2). These protections were added pursuant to the Retirement Equity Act of 1984(REA), Pub.L. No. 98-397, 98 Stat. 1426 (1984), which made significant changes in ERISA’s provisions for survivor benefits, providing an employee’s spouse with added protection and involving him or her in making choices with respect to retirement income on which the spouse, as well as the employee, may rely. See S.Rep. No. 98-575 at 1 (1984), reprinted in 1984 U.S.C.C.A.N. 2547, 2558. I believe that state and federal policies and goals with respect to spousal protection are, or should be, identical, and I see no reason why spouses of state retirement plan participants should receive any less consideration than spouses of federal retirement *1019plan participants. Just as Congress, through the 1984 amendment to ERISA, recognized and closed an unwarranted gap which left spouses of pension plan participants unprotected, I invite our legislature to correct this inequity and enact legislation that would provide spouses such as Petitioner with the same protection they would receive under ERISA, thereby avoiding the severe and unfortunate result here.
In addition, I believe the result here undercuts the legislative intent exhibited in section 8102 of the Divorce Code, 23 Pa.C.S. § 3102, to effectuate economic justice between parties who are divorced or separated. It is apparent that, in creating the Divorce Code, the legislature intended to recognize that marriage is an economic partnership in which each spouse has an interest in certain property acquired during the marriage, and it is undisputed that the SERS pension here qualifies as that certain marital property subject to equitable distribution. 23 Pa.C.S. § 3501(a). I recognize that divorce actions, and their associated equitable distribution claims, abate upon the death of one of the parties prior to the entry of the divorce decree.1 Drumheller v. Marcello, 516 Pa. 428, 532 A.2d 807 (1987). However, I can see no reason for this blanket rule; instead, I believe that, in these cases, the facts of each should determine whether equitable distribution of marital property should abate or continue. Certainly, where spouses have been separated for a lengthy period during which they aggressively have taken steps toward a final divorce decree, there is no reason that the “untimely” death of one spouse during the pendency of the divorce proceeding should automatically defeat equitable distribution of marital property.
In sum, although I must reluctantly concur in the result reached by the majority here, I can neither justify it nor subscribe to it; it is inequitable and alterable.
Judge COLINS joins in this concurring opinion.
. Once a decree in divorce is granted and, thereafter, one of the parties dies, equitable distribution of marital property continues. 23 Pa.C.S. § 3323(d).