2018 New Mexico Statutes
Chapter 10 - Public Officers and Employees
Article 11 - Retirement of Public Officers and Employees Generally
Section 10-11-14.5 - Death before retirement; survivor pensions.

A. A survivor pension may be paid to certain persons related to or designated by a member who dies before normal or disability retirement if a written application for the pension, in the form prescribed by the association, is filed with the association by the potential survivor beneficiary or beneficiaries within one year of the death of the member. Applications may be filed on behalf of the potential survivor beneficiary or beneficiaries or by a person legally authorized to represent them.

B. If there is no designated survivor beneficiary and the retirement board finds the death to have been the natural and proximate result of causes arising solely and exclusively out of and in the course of the member's performance of duty with an affiliated public employer, a survivor pension shall be payable to the eligible surviving spouse. The amount of the survivor pension shall be the greater of:

(1) the amount as calculated under the coverage plan applicable to the deceased member at the time of death as though the deceased member had retired the day preceding death under form of payment B using the actual amount of service credit attributable to the deceased member at the time of death; or

(2) fifty percent of the deceased member's final average salary.

C. A survivor pension shall also be payable to eligible surviving children if there is no designated survivor beneficiary and the retirement board finds the death to have been the natural and proximate result of causes arising solely and exclusively out of and in the course of the member's performance of duty with an affiliated public employer. The total amount of survivor pension payable for all eligible surviving children shall be either:

(1) fifty percent of the deceased member's final average salary if an eligible surviving spouse is not paid a pension; or

(2) twenty-five percent of the deceased member's final average salary if an eligible surviving spouse is paid a pension.

The total amount of survivor pension shall be divided equally among all eligible surviving children. If there is only one eligible child, the amount of pension shall be twenty-five percent of the deceased member's final average salary.

D. If the member had the applicable minimum number of years of service credit required for normal retirement, but the retirement board did not find the death to have been the natural and proximate result of causes arising solely and exclusively out of and in the course of the member's performance of duty with an affiliated public employer and there is no designated survivor beneficiary, a survivor pension shall be payable to the eligible surviving spouse. The amount of the survivor pension shall be the greater of:

(1) the amount as calculated under the coverage plan applicable to the deceased member at the time of death as though the deceased member had retired the day preceding death under form of payment B using the total amount of actual service credit attributable to the deceased member at the time of death; or

(2) thirty percent of the deceased member's final average salary.

E. If the member had the applicable minimum number of years of service credit required for normal retirement, but the retirement board did not find the death to have been the natural and proximate result of causes arising solely and exclusively out of and in the course of the member's performance of duty with an affiliated public employer and there is no designated survivor beneficiary, and if there is no eligible surviving spouse at the time of death, a survivor pension shall be payable to and divided equally among all eligible surviving children, if any. The total amount of survivor pension payable for all eligible surviving children shall be the greater of:

(1) the amount as calculated under the coverage plan applicable to the deceased member at the time of death as though the deceased member had retired the day preceding death under form of payment B with the oldest eligible surviving child as the survivor beneficiary using the total amount of actual service credit attributable to the deceased member at the time of death; or

(2) thirty percent of the deceased member's final average salary.

F. An eligible surviving spouse is the spouse to whom the deceased member was married at the time of death. An eligible surviving child is a child under the age of eighteen years and who is an unmarried, natural or adopted child of the deceased member.

G. An eligible surviving spouse's pension shall terminate upon death. An eligible surviving child's pension shall terminate upon death or marriage or reaching age eighteen years, whichever comes first.

H. If there is no designated survivor beneficiary and there is no eligible surviving child, the eligible surviving spouse may elect to be refunded the deceased member's accumulated member contributions instead of receiving a survivor pension.

I. A member may designate a survivor beneficiary to receive a pre-retirement survivor pension, subject to the following conditions:

(1) a written designation, in the form prescribed by the association, is filed by the member with the association;

(2) if the member is married at the time of designation, the designation shall only be made with the consent of the member's spouse, in the form prescribed by the association;

(3) if the member is married subsequent to the time of designation, any prior designations shall automatically be revoked upon the date of the marriage;

(4) if the member is divorced subsequent to the time of designation, any prior designation of the former spouse as survivor beneficiary shall automatically be revoked upon the date of divorce; and

(5) a designation of survivor beneficiary may be changed, with the member's spouse's consent if the member is married, by the member at any time prior to the member's death.

J. If there is a designated survivor beneficiary and the retirement board finds the death to have been the natural and proximate result of causes arising solely and exclusively out of and in the course of the member's performance of duty with an affiliated public employer, a survivor pension shall be payable to the designated survivor beneficiary. The amount of the survivor pension shall be the greater of:

(1) the amount as calculated under the coverage plan applicable to the deceased member at the time of death as though the deceased member had retired the day preceding death under form of payment B using the actual amount of service credit attributable to the member at the time of death; or

(2) fifty percent of the deceased member's final average salary.

K. If there is a designated survivor beneficiary, if the member had the applicable minimum number of years of service credit required for normal retirement and if the retirement board did not find the death to have been the natural and proximate result of causes arising solely and exclusively out of and in the course of the member's performance of duty with an affiliated public employer, a survivor pension shall be payable to the designated survivor beneficiary. The amount of the survivor pension shall be the greater of:

(1) the amount as calculated under the coverage plan applicable to the deceased member at the time of death as though the deceased member had retired the day preceding death under form of payment B using the actual amount of service credit attributable to the member at the time of death; or

(2) thirty percent of the deceased member's final average salary.

L. If all pension payments permanently terminate before there is paid an aggregate amount equal to the deceased member's accumulated member contributions at time of death, the difference between the amount of accumulated member contributions and the aggregate amount of pension paid shall be paid to the deceased member's refund beneficiary. If no refund beneficiary survives the survivor beneficiary, the difference shall be paid to the estate of the deceased member.

M. For purposes of this section, "service credit" means only the service credit earned by a member during periods of employment with an affiliated public employer.

History: Laws 1993, ch. 160, § 4; 1997, ch. 189, § 6; 2013, ch. 225, § 7.

The 2013 amendment, effective July 1, 2013, clarified how service credit will be calculated for survivors of members who die before retirement; increased the vesting period; in Subsection D, in the first sentence, after "If the member had", deleted "five or more" and added "the applicable minimum number of" and after "service credit", added "required for normal retirement"; in Subsection E, in the first sentence, after "if the member had", deleted "five or more" and added "the applicable minimum number of" and after "service credit", added "required for normal retirement"; in Subsection K, in the first sentence, after "If the member had", deleted "five or more" and added "the applicable minimum number of" and after the phrase "service credit", added "required for normal retirement"; and added Subsection M.

Severability. — Laws 2013, ch. 225, § 93 provided that if any part or application of Laws 2013, ch. 225 is held invalid, the remainder or its application to other situations or persons shall not be affected.

The 1997 amendment, effective June 20, 1997, rewrote this section to the extent that a detailed comparison is impracticable.

Interest of surviving spouse. — The vested interest in the pension benefits of a deceased member of the public employees retirement association, who has not retired, does not pass to the deceased member's spouse upon the death of the deceased member. The interest of the surviving spouse is limited to the interest created by the Public Employees Retirement Act. Under the Act, the surviving spouse of a deceased member who had not retired has a property interest only in the survivor's benefit which is conditioned upon the fulfillment of statutory requirements. Martinez v. Pub. Emps. Ret. Ass'n of N.M., 2012-NMCA-096, 286 P.3d 613, cert. granted, 2012-NMCERT-009.

One-year limitation to file an application for benefits does not violate due process. — The one-year limitation to file an application for pension benefits and the documentation requirements in Subsection A of Section 10-11-14.5 NMSA 1978 does not violate the substantive due process rights of a survivor beneficiary because they are rationally related to the legitimate government interests of promoting the fiduciary purpose of the Public Employees Retirement Act and preventing fraud. Martinez v. Pub. Emps. Ret. Ass'n of N.M., 2012-NMCA-096, 286 P.3d 613, cert. granted, 2012-NMCERT-009.

Failure to comply with statutory requirements. — Where plaintiff's spouse, who had worked for the state for seven years and had contributed to the public employees retirement association, died; plaintiff had a property interest in survivor's benefits; plaintiff sent a letter and a copy of the death certificate to defendant in which plaintiff notified defendant of the death of plaintiff's spouse, requested that defendant send plaintiff any paperwork needed to receive a survivor pension, and asked defendant to conduct an audit of the decedent's file to determine the benefits due to plaintiff; defendant sent plaintiff the prescribed application form for survivor benefits and asked plaintiff to complete and return the application; defendant did not notify plaintiff that there was a deadline for submission of the application; and plaintiff sent the completed application to defendant more than two years after plaintiff's spouse died, plaintiff failed to substantially comply with the requirements of Section 10-11-14.5 NMSA 1978 which governed plaintiff's right to survivor benefits, plaintiff's claim for survivor benefits was barred, and plaintiff was not denied substantive due process. Martinez v. Pub. Emps. Ret. Ass'n of N.M., 2012-NMCA-096, 286 P.3d 613, cert. granted, 2012-NMCERT-009.

"Final average salary". — The "final average salary" figure may not include lump sum payments for annual leave, sick leave or sick leave converted to annual leave, because such payments are not "salary" within the meaning of the Public Employees' Retirement Act. 1989 Op. Att'y Gen. No. 89-06.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 67 C.J.S. Officers and Public Employees § 248; 81A C.J.S. States §§ 46, 112 to 119.