448 - Death benefits.

§  448.  Death  benefits.  a.  A  member of a retirement system who is  subject to the provisions of this article, exclusive  of  those  members  for  whom  provision  is made pursuant to subdivision b of this section,  shall, at the time of first becoming a member thereof, make an election,  which shall be irrevocable, for coverage for financial protection in the  event of death in service, between the two following benefits:    1. A benefit upon the death of  a  member  in  service  equal  to  one  month's  salary  for  each full year of service up to a maximum of three  years' salary upon the completion of thirty-six full years  of  service,  or  in  the  event  that  a member is eligible to retire without benefit  reduction pursuant to section four hundred forty-two of this article,  a  benefit  equal  to  the  pension  reserve, if any, which would have been  payable to such member had he entered prior to  the  effective  date  of  this article and died in service, subject to the benefit limitations set  forth  in  section  four  hundred  forty-four  of  this article, if this  alternative provides a greater benefit, or;    2. A benefit upon the death of  a  member  in  service  equal  to  the  member's  salary  upon his or her completion of one year of service, two  years' salary upon completion of two years of service, and three  years'  salary  upon  completion  of  three  years  of service. In the case of a  member of a retirement system other than the New  York  state  teachers'  retirement  system,  the New York city employees' retirement system, the  New York city board of education retirement system, the  New  York  city  teachers'  retirement  system,  the  New York state and local employees'  retirement system or the New  York  state  and  local  police  and  fire  retirement  system,  such  benefit  shall  be  subject  to the following  limitations:    (a)  If  the  member  last  joined  the  retirement  system  prior  to  attainment  of  age fifty-two, the maximum benefit shall be three years'  salary;    (b) If the member was age fifty-two when he or  she  last  joined  the  retirement  system,  the maximum benefit shall be two and one-half times  annual salary;    (c) If the member was age fifty-three when he or she last  joined  the  retirement system, the maximum benefit shall be two years' salary;    (d)  If  the  member was age fifty-four when he or she last joined the  retirement system, the maximum benefit shall be one and  one-half  times  annual salary;    (e) If the member was age fifty-five or older but under age sixty-five  when  he  or  she last joined the retirement system, the maximum benefit  shall be one year's salary; and    (f) If the member was age sixty-five or older  when  he  or  she  last  joined  the retirement system, the maximum benefit shall be one thousand  dollars.    In the case of a member of a retirement system other than the New York  state  teachers'  retirement  system,  the  New  York  city   employees'  retirement  system,  the  New  York  city  board of education retirement  system, the New York city teachers'  retirement  system,  the  New  York  state  and  local employees' retirement system or the New York state and  local police and fire retirement system, commencing upon  attainment  of  age sixty-one, the benefit otherwise provided pursuant to this paragraph  shall  be reduced while the member is in service to ninety per centum of  the benefit otherwise payable  and  each  year  thereafter  the  benefit  payable  shall  be reduced by an amount equal to ten per centum per year  of the original benefit otherwise payable, but not below ten per  centum  of the original benefit otherwise payable.    In  the  case  of  a member of the New York state teachers' retirement  system,  commencing  upon  attainment  of  age  sixty-one,  the  benefitotherwise provided pursuant to this paragraph shall be reduced while the  member  is  in service to ninety-six per centum of the benefit otherwise  payable and each year thereafter the benefit payable shall be reduced by  an  amount  equal  to  four  per centum per year of the original benefit  otherwise payable, but not  below  sixty  per  centum  of  the  original  benefit  otherwise payable. In the case of a member of the New York city  employees' retirement system, the  New  York  city  board  of  education  retirement  system  or  the  New  York city teachers' retirement system,  commencing upon attainment  of  age  sixty-one,  the  benefit  otherwise  provided pursuant to this paragraph shall be reduced while the member is  in  service  to  ninety-five per centum of the benefit otherwise payable  and each year thereafter the benefit payable  shall  be  reduced  by  an  amount  equal  to  five  per  centum  per  year  of the original benefit  otherwise payable, but not  below  fifty  per  centum  of  the  original  benefit  otherwise  payable.  In  the case of any member of the New York  state and local employees' retirement system who is permitted to  retire  without regard to age or a member of the New York state and local police  and fire retirement system, commencing upon attainment of age sixty-one,  the  benefit  otherwise  provided  pursuant  to  this paragraph shall be  reduced while the member is in service to ninety-seven per centum of the  benefit otherwise payable, and each year thereafter the benefit  payable  shall  be reduced by an amount equal to three per centum per year of the  original benefit otherwise payable, but not below seventy per centum  of  the  original benefit otherwise payable. In the case of any other member  of the New York state and local employees' retirement system, commencing  upon  attainment  of  age  sixty-one,  the  benefit  otherwise  provided  pursuant  to  this  paragraph  shall  be  reduced while the member is in  service to ninety-six per centum of the benefit otherwise  payable,  and  each  year  thereafter the benefit payable shall be reduced by an amount  equal to four per centum per year  of  the  original  benefit  otherwise  payable,  but  not  below  sixty  per  centum  of  the  original benefit  otherwise payable. Upon  retirement  from  any  retirement  system,  the  benefit  in  force shall be reduced by fifty per centum; upon completion  of the first year of retirement, the benefit in force  at  the  time  of  retirement shall be reduced by an additional twenty-five per centum, and  upon  commencement of the third year of retirement, the benefit shall be  ten per centum of the benefit in force at age sixty, if any, or  at  the  time  of  retirement if retirement preceded such age; provided, however,  the benefit in retirement shall not be reduced below ten per  centum  of  the  benefit in force at age sixty, if any, or at the time of retirement  if retirement preceded such age. Notwithstanding any other provision  of  this  paragraph  to the contrary, the benefit for a retiree from the New  York state and local employees' retirement system shall not  be  reduced  below ten per centum of the benefit in force at the time of retirement.    3.  If  a  member  dies  in  service  without having made the election  specified in this subdivision within ninety days after first becoming  a  member,  or  within  the  period  prescribed by the retirement system of  which he is a member if such period is less than ninety days,  he  shall  be deemed to have made the election specified in paragraph two.    4.  Notwithstanding any other provision of this article, any member of  the New York state teachers' retirement system who joined  on  or  after  July  first,  nineteen  hundred  seventy-three  and  before  July first,  nineteen hundred seventy-four may change the election set forth in  this  subdivision  by  filing  a  new  election  on  or before June thirtieth,  nineteen hundred  eighty-nine.  The  election  filed  pursuant  to  this  paragraph shall be irrevocable.    5.  Notwithstanding  any  provision  of  this  article,  a member of a  retirement system subject to the provisions of  this  article  who  lastjoined  such  system  on or after January first, two thousand one who is  not covered by the death benefit calculation provided in  subdivision  b  of  this section shall, upon a qualifying death, be covered by the death  benefit   calculation   provided  pursuant  to  paragraph  two  of  this  subdivision and shall not be entitled to elect between the death benefit  calculations provided in paragraphs one and two of this subdivision. Any  individual who  last  joined  such  system  before  January  first,  two  thousand  one  who  is  not  covered  by  the  death benefit calculation  provided in subdivision b of this  section  shall  be  covered,  upon  a  qualifying death, by the death benefit calculation provided by paragraph  two  of this subdivision unless such individual had timely elected death  benefit coverage under the calculation provided by paragraph one of this  subdivision and, upon such death, it is determined that the benefit,  as  calculated  under such paragraph one would be greater than as calculated  under such paragraph two, in which case  the  benefit  calculated  under  such paragraph one shall be payable.    b.  A  member of a retirement system subject to the provisions of this  article who is a police  officer,  firefighter,  correction  officer  or  sanitation  worker  and  is in a plan which permits immediate retirement  upon completion of a specified period of service without regard  to  age  or  who  is  subject  to the provisions of subdivision b of section four  hundred forty-five of this article, shall upon completion of ninety days  of service be covered for financial protection in the event of death  in  service pursuant to this subdivision.    1.  Such  death  benefit  shall  be  equal to three times the member's  salary raised to the next highest multiple of one thousand dollars,  but  in  no event shall it exceed three times the maximum salary specified in  section one hundred thirty of the civil service law or, in the case of a  member of a retirement system other than the New  York  city  employees'  retirement system, the New York city police pension fund, subchapter two  or  the  New York city fire department pension fund, subchapter two, the  specific  limitations  specified  for  age  of  entrance  into   service  contained  in  subparagraphs (b), (c), (d), (e) and (f) of paragraph two  of subdivision a of this section.    2. Provided further,  notwithstanding  any  other  provision  of  this  article  to  the  contrary,  where  the  member  is  a police officer or  firefighter and would have been entitled to a service retirement benefit  at the time of his or her death and where his or her death occurs on  or  after  July  first,  two  thousand,  the  beneficiary  or  beneficiaries  nominated for the purposes of this subdivision may elect to receive,  in  a  lump  sum,  an  amount  payable  which  shall be equal to the pension  reserve that would have been established had the member retired  on  the  date  of  his  or  her  death, or the value of the death benefit and the  reserve-for-increased-take-home-pay,  if  any,  whichever  is   greater,  provided  further that for the purpose of determining entitlement to the  benefit provided by this subdivision, and notwithstanding subdivision  j  of  section three hundred forty-one of this chapter, where the member is  an officer or member of the state police the total  number  of  days  of  unused  sick leave and accumulated vacation credit accrued by the member  at the time of his or her death shall be considered in meeting the total  creditable service required to qualify for a service retirement  benefit  provided without regard to age where his or her death occurs on or after  July  second, two thousand nine. Provided further that where such police  officer or firefighter dies on or after July first, two thousand,  after  having  retired from service, but before a first payment of a retirement  allowance, such person shall be deemed to have been in  service  at  the  time  of his or her death for the purposes of this subdivision only, and  provided further that the pension reserve established pursuant  to  thisparagraph  for a person who dies after retiring from service, but before  first payment of a retirement allowance, shall be determined as  of  the  date  of  retirement  and any pension payments payable for the period of  time  prior  to  the retiree's death shall be deducted from any benefits  payable pursuant to this subdivision.    c. For the purpose of  this  section,  salary  shall  be  the  regular  compensation earned during the member's last twelve months of service in  full pay status as a member or, if he had not completed twelve months of  service prior to the date of death, but was subject to the provisions of  subdivision b of this section, the compensation he would have earned had  he  worked  for the twelve months prior to such date; provided, however,  for the purpose of  this  section  salary  shall  exclude  any  form  of  termination pay (which shall include any compensation in anticipation of  retirement),  or  any  lump  sum  payment for deferred compensation sick  leave, or accumulated vacation credit or any other payment for time  not  worked  (other  than  compensation  received  while  on  sick  leave  or  authorized leave of absence) and in no event shall it exceed the maximum  salary specified in section one hundred thirty of the civil service law.    d. The benefits provided pursuant to this section are in lieu  of  all  other  benefits  provided  by  this  or  any  other  state  or local law  exclusive of a benefit provided under the  workmen's  compensation  law,  the  civil  service  law  or  group life insurance; provided, however, a  beneficiary of a member eligible for  a  benefit  as  the  result  of  a  service  connected  accident, may elect to receive such other benefit in  lieu of the benefit provided pursuant to this section.    e. For the purposes of this section:    1. A member who dies while off the payroll shall be considered  to  be  in service provided he or she (a) was on the payroll in such service and  paid  within a period of twelve months prior to his or her death, or was  on the payroll in the service upon which membership is based at the time  he or she was ordered to active duty, other than for training  purposes,  pursuant to Title 10 of the United States Code, with the armed forces of  the  United  States  and  died while on such active duty on or after the  effective date of the chapter of the laws of  two  thousand  five  which  amended  this subdivision, (b) had not been otherwise gainfully employed  since he or she ceased to be on such payroll and (c) had credit for  one  or  more  years  of  continuous  service since he or she last entered or  reentered the service of his or her employer; notwithstanding any  other  provision  of  law  to  the  contrary,  a  member  of  the New York city  employees' retirement system or the board of education retirement system  of the city of New York shall be deemed to have died on the payroll  for  the  purposes  of this section in the event that death occurs while such  member is on an authorized leave of  absence  without  pay  for  medical  reasons  which has continuously been in effect since the member was last  paid on the payroll in such service, provided, however, that such member  was on the payroll in such service and paid within the four-year  period  prior to his or her death; and    2.  The  benefit  payable  shall be in addition to any payment made on  account of a member's accumulated contributions.    3. Provided, further, that any such member  ordered  to  active  duty,  other  than  for  training  purposes, pursuant to Title 10 of the United  States Code, with the armed forces of the United States who  died  prior  to  rendering the minimum amount of service necessary to be eligible for  this benefit shall be considered to have satisfied the  minimum  service  requirement.    f. Notwithstanding the provisions of any other law to the contrary and  solely  for the purpose of determining eligibility for the death benefit  payable pursuant to this section, a person subject to this section shallbe considered to have died  while  in  teaching  service  provided  such  person  was  in such service at the time he or she was ordered to active  duty, other than for training purposes, pursuant  to  Title  10  of  the  United  States Code, with the armed forces of the United States and died  while on such active duty on or after the effective date of the  chapter  of the laws of two thousand five which added this subdivision. Provided,  further,  that  any  such  person ordered to active duty, other than for  training purposes, pursuant to Title 10 of the United States Code,  with  the  armed  forces  of the United States who died prior to rendering the  minimum amount of service necessary to  be  eligible  for  this  benefit  shall be considered to have satisfied the minimum service requirements.    g.  A  member, or on the death of such member, the person nominated by  him or her to receive his or her death benefit, may provide, by  written  designation,  duly  executed  and  filed with the comptroller, that such  death benefit and the reserve-for-increased-take-home-pay shall be  paid  in  the  form of an annuity. Such designation shall be filed prior to or  within ninety days after the death of the member.  The  amount  of  such  annuity  shall  be  determined as the actuarial equivalent of such death  benefit and reserve on the basis of the age of such beneficiary  at  the  time  of  the  member's death. For the purposes of this subdivision, the  mortality and interest rates used in determining this annuity  shall  be  the rates in effect on the date of the death of such member.