concurring.
I agree with the conclusion of the court of appeals that pension plans are designed primarily for the benefit of the employee and the non-employee spouse and not the able-bodied adult children. However, I concur with the majority in declining to reclassify the retirement benefits as a non-probate asset or to adopt the terminable interest rule. Although equitable and public policy considerations could warrant the application of these doctrines, there is no workable solution based upon community property principles or the Texas Probate Code.
It is submitted that there is an alternative available in order to avoid the unfortunate result that Mr. Allard has experienced. In order to qualify the pension plan benefits as a non-probate asset, the spouses must agree in writing that the surviving spouse will retain all rights to the deceased spouse’s community property interest in the pension benefits. The Texas Probate Code classifies certain pension plan provisions as nontestamentary transfers provided that the property rights and pension plans pass to a person designated by the decedent. TEX.PROB.CODE ANN. § 450(a)(1) & (3) (Vernon 1988).
In the instant case, Mrs. Allard, the decedent and non-employee spouse, did nothing to comply with the Texas Probate Code requirements for nontestamentary transfers because she did not make a written agreement to dispose of her community interest in the pension benefits by transferring them to a designated person. Furthermore, the pension plan provided a joint survivor option which the Allards failed to exercise. Thus, there is no basis to conclude that the employee spouse should receive a nontestamentary transfer of the non-employee spouse’s community property interest in the retirement plan.
Additionally, adoption of the terminable interest rule would require a recharacteri-zation of the non-employee spouse’s com*116munity interest and a divestment of her rights upon her death. Texas community property rights are constitutional in origin and this court and the Texas Legislature must observe constitutional restrictions on the recharacterization of property. See e.g., Maples v. Nimitz, 615 S.W.2d 690, 695 (Tex.1981); Williams v. McKnight, 402 S.W.2d 505, 507 (Tex.1966); Arnold v. Leonard, 114 Tex. 535, 547, 273 S.W. 799, 802 (1925); TEX. CONST, art. XVI, § 15. A recent constitutional amendment provides that “spouses may agree in writing that all or part of their community property becomes the property of their surviving spouse on the death of a spouse”. TEX. CONST. ANN. art. XVI, § 15 note (Vernon Supp.1988). However, even if held to be retroactive, this case does not warrant that application because there is no evidence that Mrs. Allard made a written agreement that her community property interest become the property of Mr. Allard upon her death.
In conclusion, I sympathize with Mr. Al-lard’s position, but fundamental community property principles and the Texas Probate Code cannot support the divestment of the community property interest of Mrs. Allard or the qualification of the retirement benefits as a non-probate asset.