What Howe v. Howe actually holds — and why the largest asset in the case may not be the pension at all.
For one cohort of NYPD and FDNY members, an additional layer of separate-property analysis controls every case: the first responders whose service captured September 11, 2001 and the World Trade Center recovery. For many of them, the largest single dollar amount in the marital estate isn’t the pension. It’s the Victim Compensation Fund award.
The September 11th Victim Compensation Fund was permanently extended by the Never Forget the Heroes Act of 2019 and accepts claims through 2090. It has paid more than $13 billion to date. Individual awards routinely exceed six figures; a meaningful number exceed $1 million. New diagnoses keep triggering new claims.
The controlling case
In Howe v. Howe (2d Dept. 2009), the Second Department held that a VCF award — in its entirety, including the economic-loss portion — is “compensation for personal injuries” under DRL § 236(B)(1)(d)(2). It is the recipient’s separate property and is not subject to equitable distribution. This is a categorical rule, not a component-by-component analysis.
The disability holding that travels with it
The same opinion addressed the firefighter’s accidental disability pension. To the extent it compensates for personal injuries, the disability portion is separate property too — and critically, even where the record doesn’t distinguish the disability and non-disability components, the court will remit so the pension administrator can determine the split under a properly drawn order. You don’t surrender the carve-out just because the trial record is silent. You draft the order to direct the determination.
What it looks like on the balance sheet
For a 9/11-era member, a WTC-related accidental disability pension at 75% of base pay can hold over $500,000 in separate-property value in the disability portion alone. Add a VCF award of $500,000 to $1.5 million — also entirely separate — and total separate-property exposure routinely exceeds seven figures for a single client.
What Howe means at the table
- Representing the member: the VCF award and the disability portion are separate property. Preserve both expressly. Obtain the VCF award letter and attach the Special Master’s component breakdown as an exhibit.
- Representing the alternate payee: positions that assume a share of the VCF award won’t survive a motion to vacate. Your leverage is the marital service portion of the pension, the ASF excess, the VSF, and other non-personal-injury assets — not the VCF.
Howe is sixteen years old, anchored in clear statutory text, and undisturbed. It is not a close question — yet the matrimonial bar keeps drafting agreements that ignore it. If your client’s career covered 9/11 and the recovery period, raise the VCF and disability classification at intake. Every time.
Attorney Advertising. Informational and educational purposes only — not legal advice. All case citations should be independently verified. Erin Norris-Colgan, Esq. — Northstar QDRO. northstarqdro.com
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For a 9/11-era NYPD or FDNY member, the largest asset in the divorce may not be the pension. It may be the Victim Compensation Fund award — and the matrimonial bar keeps missing the case that controls it.
Howe v. Howe (2d Dept. 2009): a VCF award, in its entirety, is “compensation for personal injuries” under DRL § 236(B)(1)(d)(2) — separate property, not subject to equitable distribution. The same opinion treats the personal-injury portion of an accidental disability pension as separate, and lets the pension administrator determine the split even when the record is silent.
Combined separate-property exposure for one client routinely exceeds seven figures.
If you represent the member: preserve both expressly, and attach the VCF Special Master’s component breakdown as an exhibit. If you represent the alternate payee: your leverage is the marital service pension, the ASF excess, and the VSF — not the VCF.
Closing out the Beyond Majauskas series on the blog: “The 9/11 Layer Most Settlement Agreements Never Reach.” Link in comments. → Handling a 9/11-era case? DM me.
#matrimoniallaw #familylaw #QDRO #September11 #FDNY #NYPD | Attorney Advertising. Not legal advice.
