Benefits payable where deceased member was formerly a member of Chapter 3.24 retirement system and became a member of this system under Sections 3.28.410, 3.28.420, or 3.28.430 and surviving spouse, surviving domestic partner or children are not eligible for allowance under Sections 3.28.1470 and 3.28.1480.
San José Municipal Code § 3.28.1490
in effect3.28.1490 - Benefits payable where deceased member was formerly a member of Chapter 3.24 retirement system and became a member of this system under Sections 3.28.410, 3.28.420, or 3.28.430 and surviving spouse, surviving domestic partner or children are not eligible for allowance under Sections 3.28.1470 and 3.28.1480.
Subject to other provisions of this Chapter 3.28, upon death before retirement of a member who formerly was a member of the Chapter 3.24 Retirement System and who became a member of this System under and pursuant to the provisions of Sections 3.28.410, 3.28.420, 3.28.430, if at the time of his or her death said member was credited with accumulated contributions of five hundred dollars ($500.00) or more, the following benefits shall be payable and shall be paid, from the retirement fund, to the following persons in the following circumstances; provided, however, if such member has become a Tier 2 member in no event shall any such benefit exceed seventy percent (70%) of the Tier 2 member's final compensation:
A. If at the time of said member's death there is or are a surviving spouse, surviving domestic partner or surviving child or children but none of them is entitled to an allowance under and pursuant to the provisions of Sections 3.28.1470 and 3.28.1480, and if, in addition, the deceased member, as of the time of his or her death, had attained the minimum age for voluntary service retirement and was entitled to credit for twenty (20) or more years of Federated City Service, an annual allowance, equal to one-half (½) of the unmodified retirement allowance which said member would have been entitled to if he or she had retired for service on the date of death instead of dying, shall be payable as follows to the following persons:
1. If the deceased is survived by a surviving spouse or surviving domestic partner, said allowance shall be paid to the surviving spouse or surviving domestic partner until he or she dies.
2. If there is no surviving spouse or surviving domestic partner but there is only one (1) eligible child, said allowance shall be paid to the surviving child until he or she attains the age of eighteen (18) years, marries, establishes a registered domestic partnership, or dies, whichever is earlier.
3. If there is no surviving spouse or surviving domestic partner but there are two (2) or more eligible surviving children, each surviving child shall be paid, until he or she attains the age of eighteen (18) years, marries, establishes a registered domestic partnership, or dies, whichever is earlier, an annual allowance equal to that proportion of the annual allowance which would have been payable to a surviving spouse or surviving domestic partner if he or she had existed which one bears to the total number of eligible surviving children in existence at the time any such allowance becomes payable.
4. If there is a surviving spouse or surviving domestic partner but he or she dies and at the time of the death there is only one (1) eligible surviving child, such child shall thereafter be paid, until he or she attains the age of eighteen (18) years, marries, establishes a registered domestic partnership, or dies, whichever is earlier, the same annual allowance as was theretofore paid to the surviving spouse or surviving domestic partner.
5. If there is a surviving spouse or surviving domestic partner but he or she dies and at the time of the death there are two (2) or more eligible surviving children, each such child shall thereafter be paid, until he or she attains the age of eighteen (18) years, marries, establishes a registered domestic partnership, or dies, whichever is earlier, an annual allowance equal to that proportion of the annual allowance theretofore paid to the surviving spouse or surviving domestic partner as one bears to the total number of eligible surviving children in existence at the time any such allowance becomes payable.
6. If at the time of said member's death there is no surviving spouse, no surviving domestic partner, and no eligible surviving child or children, no allowance shall be payable under this Section.
B. If the amount of all allowances paid or payable under the foregoing provisions of this Section is less than the amount of the death benefit which would be payable under the provisions of Section 3.28.1500 to the estate or beneficiary of the deceased member in the circumstances specified in such Section 3.28.1500, then in such event the amount of said death benefit less the total amount of all allowances paid and payable under the foregoing provisions of this Section shall be paid, when no allowances are any longer payable under this Section, to such child or children of the deceased member as may then exist who no longer are entitled to an allowance under the foregoing provisions of this Section, or, if there are no such children at such time, to the estate of said deceased member.
C. The benefits hereinabove provided in this Section are in lieu of the death benefits which would be payable to the estate or designated beneficiary of the deceased member under and pursuant to the provisions of Section 3.28.1500 in the circumstances specified in said Section 3.28.1500.
However, the surviving spouse or surviving domestic partner or, if there is no surviving spouse or surviving domestic partner, all of the surviving children, may elect before any allowance is paid to any person under the foregoing provisions of this Section, to have the death benefit specified in Section 3.28.1500 paid to whomsoever may become entitled to it under the provisions of Section 3.28.1500, in lieu of having any benefits paid under or pursuant to the foregoing provisions of this Section; and, in such event, no benefits whatsoever shall be paid or be payable to any person under the provisions of this Section but said death benefit shall thereupon become payable under the provisions of Section 3.28.1500 to whomsoever may be entitled to the same under Section 3.28.1500. Any election made pursuant to the provisions of this subsection shall be in writing and must be filed with the Retirement Board before any allowance or benefit is paid to any person under this Section 3.28.1490.
(Prior code § 2904.1508; Ords. 27521, 29120, 29904.)
Source: City of San José, Municipal Code (Municode Library, library.municode.com)URL: https://library.municode.com/ca/san_jose/codes/code_of_ordinances?nodeId=TIT3PE_IIREPL_CH3.281975FEEMREPL_PT11DEBERE_3.28.1490BEPAWHDEMEWAFOMECH3.24RESYBEMESYUNSE3.28.4103.28.4203.28.430SUSPSUDOPACHARNOELALUNSE3.28.14703.28.1480Fetched: 11/1/2026