I concur in the reversal of the judgment directing the Los Angeles County Employees Retirement Association to designate Robert CarnalPs ex-spouse Cheryl as his “surviving spouse.” Robert is alive, employed by the County of Los Angeles and remains a member of its retirement association. According to the record he is also single. In any event Cheryl is unquestionably not his spouse. She may survive him but that is only a matter for speculation at present.
I therefore agree with the majority that Cheryl cannot be designated the “surviving spouse” under Robert’s retirement plan, but I question the choice of remedies recommended to the trial court. In my view the trial court should be directed to retain jurisdiction over the survivor and death benefits until Robert retires or dies. When either of those events occurs the trial court will be presented with a factual context, something that is now lacking. It can then exercise its proper role and “weigh and assign the relative risks involved in the options.” (Maj. opn., ante, at p. 1026.)
Generally, a court will not issue an order based on a speculative fact situation. Waiting for the facts to develop is especially wise here for three reasons. First, any order the court makes now will not bind a future Mrs. Carnall who could become the “surviving spouse” described in the statute. The new Mrs. Carnall, if she ever exists, may demand the plan pay her the entire survivor’s benefit as the statute requires, notwithstanding the prior court order that it pay a prorated portion to Cheryl. This would force payment of more benefits than the plan itself provides, the very situation sought to be avoided by this appeal.
Second, if the trial court now orders the plan to pay Cheryl a prorated portion of the survivor’s benefit when Robert dies, many questions remain the likely subject of future litigation. For example, what if a new Mrs. Carnall survives Robert, begins to collect her share of the benefit along with Cheryl, and then dies. Must the plan continue to pay Cheryl the benefit for the rest of her life even though there is no longer a surviving spouse? If so, how much of the benefit does Cheryl collect? Is it the total survivor’s benefit times the number of months she was married to Robert while he was in the plan divided by the number of months he was in the plan? Is it one-half of that amount because she is receiving her community interest only and not a surviving spouse’s annuity? What if Cheryl dies while collecting her portion along with the surviving spouse. Does Cheryl’s portion go to her heirs? Or, since Cheryl could not have received any payments after her death had she remained married to Robert, does the surviving spouse’s portion increase by the amount formerly paid to Cheryl? All the parties involved here will be better served if an order is issued when “the facts have sufficiently congealed to permit an intelligent and useful decision to be made.” *1028(California Water & Tel. Co. v. Los Angeles (1967) 253 Cal.App.2d 16, 22 [61 Cal.Rptr. 618].)
Third, as the majority recommends, the Legislature may act to amend the County Employees Retirement Law to conform with the abolition of the terminable interest rule before Robert retires or dies. Presumably, if this occurs, the problems will be resolved. For these reasons, I would reverse the judgment designating Cheryl as the surviving spouse and direct the trial court to retain jurisdiction over the division of the community property interest in the survivor and death benefits, unless Robert decides to purchase Cheryl’s future rights.
I also disagree with the majority’s criticism of the Civil Code section 4363.2 procedure which allows a plan to challenge a family law order after it has been made, even though the plan fails to appear at the hearing. My review of the legislative history reveals the section is intended to accommodate both the need to join pension plans in family law proceedings for the protection of both spouses, and the need to avoid a virtually limitless drain on plan assets by requiring plan lawyers and actuaries to attend countless family law court proceedings. (Civ. Code, § 4363 et seq.)
One or both spouses are parties to an employee pension plan in many, if not most, marital dissolution actions. Both spouses are entitled to know the details of benefits provided by the plans in which either participates so that community interests can be valued and divided equitably. But plans need to hold down transactional costs to fulfill their primary function—the payment of benefits to retirees and their survivors.
Civil Code section 4363.1 allows for joinder through the use of simple forms. Typically, a plan then provides the parties and their counsel with an explanation of the benefits available to the member spouse. In the overwhelming majority of cases the parties proceed to resolve the pension plan issues without significant participation by the plan’s attorneys. Since a plan is not concerned with how benefits are divided, but only with whether the proposed order is permitted by the plan and its governing statutes, most orders are routinely accepted by plan administrators.
Section 4363.2 assures the plan an opportunity to contest the occasional order which is contrary to law or the plan agreement. My colleagues suggest a return to the very situation which the Legislature has determined should be avoided. Since a plan could never be certain at what point in a family law action its concerns would be addressed, plan attorneys and *1029actuaries would need to be present at every stage.1 While this is a laudable move toward full employment for the profession, it also means plan attorneys and representatives would be waiting their turn, at great expense to the plan itself, while the unhappy couple battle over the more difficult issues of custody, visitation, support and property valuation.
Courts exist to serve the public. When it comes to dividing rights to pension plan benefits, the Legislature has determined courts should bear the occasional inconvenience of a delayed challenge to an order rather than require a potentially more expensive and time-consuming hearing in every case. I respect that legislative judgment.
The majority suggest a special hearing be set in every family law case for a determination of pension issues. Of course, this would create more problems than it solves. Yet another proceeding, with its concomitant time and expense to the parties, the plan and the courts, would be tacked on to family law actions. I am not convinced this would be less expensive and less time-consuming to all concerned than the occasional delayed hearing under section 4363.2.