DEATH BEFORE RETIREMENT

SJ-MC tit. 3, div. II, ch. 3.28, pt. 11

in effect

San José Municipal Code § 3.28.1450 Applicability of Part 11 provisions.

3.28.1450 - Applicability of Part 11 provisions. Except as may be otherwise specifically provided by other provisions of this Chapter 3.28, the provisions of this Part 11 shall apply only if and when a member of this system dies while he is a member of this system and before being retired for service or disability (or, if he has previously been retired but later reinstated to federated city service and again becomes a member of this system, while he is again a member and before he again retires for service or disability). Notwithstanding any other provision of this retirement system, if a person is reinstated to federated city service on or after September 30, 2012, such person shall become a tier 2 member and provisions regarding benefits provided on death for tier 2 members shall be applicable to any such tier 2 member. (Prior code § 2904.1500; Ord. 29120.)

San José Municipal Code § 3.28.1460 Definitions.

3.28.1460 - Definitions. As used in this Part 11: A. "Death before retirement" means death of a member of this system while a member of this system and before retirement for service or disability. If a member should die after reinstatement from retirement and while a member of this system but before he or she again retires, such member's death shall be deemed to be "death before retirement." B. "Nonservice-connected death" means death of a member which is not a service-connected death. C. "Service-connected death" means death of a member which arises or results from an injury or disease arising out of and in the course of the federated city service for which such deceased member was entitled to credit under this system. D. "Surviving child" and "surviving children" mean such child or children of a deceased member that meet and satisfy all of the following conditions and requirements: 1. The child survives the member's death; and 2. The child is neither married nor a member of a registered domestic partnership at the time of the member's death; and 3. The child is under the age of eighteen years at the time of the member's death; and 4. If the child is an adopted child of the member, the adoption was completed pursuant to law prior to the member's death. A child who has been married, but whose marriage has been dissolved by divorce or death, shall not be deemed to be a surviving child as said term is used in this Part 11. A child who has been a member of a registered domestic partnership, but whose partnership has been terminated through a proceeding for dissolution or by filing a notice of termination of domestic partnership, or by death, shall not be deemed to be a surviving child as said term is used in this Part 11. E. "Surviving spouse" means the person to whom a member was married at the time of the member's death who survives the member's death, and none other. F. "Surviving domestic partner" means the person: 1. With whom a member, at the time of the member's death, had established a registered domestic partnership by filing a declaration of domestic partnership with the secretary of state pursuant to Division 2.5 of the California Family Code or had formed a legal union other than a marriage in a jurisdiction other than California and such union is recognized as a domestic partnership pursuant to California Family Code Section 299.2; and 2. Who survives the member's death. (Prior code §§ 2904.1501 - 2904,1505; Ords. 23806, 27521.)

San José Municipal Code § 3.28.1470 Eligibility for allowance.

3.28.1470 - Eligibility for allowance. The benefits hereinafter specified in Section 3.28.1480 shall be payable to the persons specified in such section in each of the following situations, and none other: A. Upon the death before retirement of a non-Tier 2 member who at the time of death was entitled to credit under this System for five (5) or more years of Federated City Service rendered after June 30, 1975; B. Upon the death before retirement of a Tier 2 member who, at the time of death, would have been entitled to immediately commence a retirement benefit; C. Upon the death before retirement of a member who was a former member of the Chapter 3.24 Retirement System who became a member of this System pursuant to the provisions of Section 3.28.400 and who, in addition, has five hundred dollars ($500.00) or more of accumulated contributions in the retirement fund at the time of death; D. Upon the death before retirement of any other member, regardless of amount of service or accumulated contributions, if such death is found and determined by the Retirement Board to be a service-connected death as such is defined in this Part 11. (Prior code § 2904.1506; Ords. 21371, 23485, 29120, 29904, 30930.)

San José Municipal Code § 3.28.1480 Amount of allowance to spouse, domestic partner or children if they are eligible under Section 3.28.1470.

3.28.1480 - Amount of allowance to spouse, domestic partner or children if they are eligible under Section 3.28.1470. Allowances payable to those persons only who are eligible for an allowance under the provisions of Section 3.28.1470 shall be as follows: A. Subject to other provisions of this Chapter 3.28, in any of the situations specified in Section 3.28.1470, the surviving spouse or surviving domestic partner, if any, of such member shall thereafter be entitled to receive and be paid, from the retirement fund, the following annual allowance. 1. If the deceased as of the time of his or her death, had attained the minimum age for service retirement and was credited with twenty (20) or more years of Federated City Service, the surviving spouse or surviving domestic partner shall be entitled to receive said allowance until the surviving spouse or surviving domestic partner dies. 2. If the deceased, as of the time of his or her death, had not attained the minimum age for service retirement or was not credited with twenty (20) or more years of Federated City Service, the surviving spouse or surviving domestic partner shall be entitled to receive said allowance until the surviving spouse or surviving domestic partner dies or marries or establishes a subsequent registered domestic partnership, whichever is earlier. 3. Said annual allowance shall be equal to two and one-half percent (2.5%) of the deceased member's final compensation times the number of years of Federated City Service for which the deceased member was entitled to credit under the Retirement System at the time of the deceased member's death; provided and excepting, however, that: a. Such annual allowance shall never be more than seventy-five percent (75%) of the deceased member's final compensation; and b. Such annual allowance shall not be less than forty percent (40%) of the deceased member's final compensation if the deceased member at the time of death was in the employ of the City for the purpose of rendering Federated City Service and such employment had not been terminated by resignation, discharge or layoff. B. Subject to other provisions of this Chapter, in any of the situations specified in Section 3.28.1470, if, at the time of said member's death, there is no surviving spouse or surviving domestic partner but there is or are one or more eligible surviving children, the following annual allowance shall be paid to said child or children, as follows: 1. If there is only one (1) eligible surviving child, such child shall be entitled to receive and shall be paid, from the retirement fund, 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 twenty-five percent (25%) of the annual allowance that would have been payable to a surviving spouse or surviving domestic partner under subsection A. of this Section if there had been a surviving spouse or surviving domestic partner. 2. If there are two (2) or more eligible surviving children, each surviving child thereafter in existence shall be entitled to receive and shall be paid from the retirement fund, until he or she attains the age of eighteen (18) years or 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 the surviving spouse or surviving domestic partner under subsection A. of this Section if there had been a surviving spouse or surviving domestic partner which one bears to the total number of eligible surviving children in existence at the time any such allowance becomes payable, subject to the following limitations: a. The annual allowance payable to any surviving child shall never exceed twenty-five percent (25%) of the annual allowance that would have been payable to a surviving spouse or surviving domestic partner under subsection A. of this Section if there were a surviving spouse or surviving domestic partner; and b. The total annual allowances payable to all children shall never exceed seventy-five percent (75%) of the annual allowance that would have been payable to a surviving spouse or surviving domestic partner if there were a surviving spouse or surviving domestic partner. C. Subject to other provisions of this Chapter, in any of the situations specified in Section 3.28.1470, if at the time of said member's death there is a surviving spouse or surviving domestic partner but payment of an annual allowance to said surviving spouse or surviving domestic partner ceases because of his or her death or marriage or because he or she has established a subsequent registered domestic partnership, and if at the time of cessation of said surviving spouse's or surviving domestic partner's allowance there is or are one or more eligible surviving child or children, then in such event, the following annual allowance or allowances shall be payable, upon cessation of said surviving spouse's or surviving domestic partner's allowance, to the eligible surviving child or children then in existence, as follows: 1. If only one (1) eligible surviving child exists after the surviving spouse's or surviving domestic partner's allowance ceases, such child shall be entitled to receive and shall be paid, from the retirement fund, 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 twenty-five percent (25%) of the annual allowance which was theretofore payable under subsection A. of this Section to the surviving spouse or surviving domestic partner. 2. If two (2) or more eligible surviving children exist after the surviving spouse's or surviving domestic partner's allowance ceases, each such child shall be entitled to receive and shall be paid, from the retirement fund, 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 the surviving spouse or surviving domestic partner was theretofore entitled to receive under subsection A. of this Section, which one bears to the total number of eligible surviving children in existence at the time any such allowance becomes payable, subject to the following limitations: a. The annual allowance payable to any surviving child shall never exceed twenty-five percent (25%) of the annual allowance theretofore payable under subsection A. of this Section to the surviving spouse or surviving domestic partner; and b. The total annual allowances payable to all the children shall never exceed seventy-five percent (75%) of the annual allowance theretofore payable under subsection A. of this Section to the surviving spouse or surviving domestic partner. D. Effective June 17, 2017, if the deceased person is a Tier 2 member on or after June 16, 2017 and meets the eligibility requirements of Section 3.28.1470, the Tier 2 member shall receive the same death benefits as provided to other members of this Plan under this Section 3.28.1480; provided, however, the annual allowance shall be equal to two percent (2.0%) of the deceased member's final compensation times the number of years of Federated City Service for which the deceased member was entitled to credit under the Retirement System at the time of the deceased member's death and in no event shall such annual benefit ever exceed seventy percent (70%) of the Tier 2 member's final compensation. (Prior code § 2904.1507; Ords. 27521, 29120, 29904, 30930.)

San José Municipal Code § 3.28.1490 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.

3.28.1490 - 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.)

San José Municipal Code § 3.28.1500 Death benefit - Description and conditions.

3.28.1500 - Death benefit - Description and conditions. A. If, upon death before retirement of a member, no person is or becomes entitled to any benefits under any of the foregoing provisions of this Part 11, there shall be paid to the deceased member's estate, or to a beneficiary named by him or her if he or she elects to have such beneficiary receive such benefit in lieu of having it go to his or her estate. The death benefit for members shall be equal to the amount of all of the deceased member's accumulated contributions in this System plus the following: One-twelfth (1/12) of the annual compensation earned (or compensation earnable, if such is greater) by the deceased member during the twelve (12) months immediately preceding his or her death times the number of years of Federated City Service to which such deceased member was entitled to credit as of the date of his or her death; provided and excepting however, that the amount payable under this paragraph shall not exceed one-half (1/2) of the compensation earned (or compensation earnable, if such is greater) by the deceased member in said twelve-month period. Notwithstanding the foregoing, the death benefit for Tier 2 members shall only be equal to a return of employee contributions plus interest if the Tier 2 member was not eligible for retirement at the time of death. B. A member may at any time designate, by a writing filed with the Board, a beneficiary to receive such benefits as may be payable to his or her beneficiary or estate under this Section. C. Except as hereinafter otherwise provided, the designation of beneficiary may be by class, subject to such conditions as may be imposed by Board rule, in which such members of the class as are in being at the time of the member's death shall be the beneficiary. D. The right of any person designated as a beneficiary by a member to any benefits hereunder shall also be subject to the Board's conclusive determination, upon evidence satisfactory to it of the existence, identity or other facts relating to entitlement of such person so designated as beneficiary, and payment made by the System in reliance on any such determination made in good faith, notwithstanding that it may not have discovered a beneficiary otherwise entitled to share in the benefit, shall constitute a complete discharge and release of the System from further liability for the benefit. E. The designation of a beneficiary under this Section may be revoked at the pleasure of the person who made it and a different beneficiary designated by a writing filed with the Board. F. The designation of the beneficiary by a member is not affected by termination of nor a break in his or her membership. (Prior code § 2904.1509; Ords. 29120, 29904.)

San José Municipal Code § 3.28.1510 Death benefit - Election for payment in installments.

3.28.1510 - Death benefit - Election for payment in installments. An election may be made to have the death benefit specified in Section 3.28.1500 paid in installments as follows: A. A member may elect by a writing filed with the Board to have all or part of the death benefit paid in monthly (or biweekly, if the City elects to pay in biweekly installments) installments, fixed in number or amount and not involving life contingency, subject to such rules as the Board may adopt. Regular interest shall be credited on the unpaid balance of benefits payable. B. If a member dies without having made an election under subsection A. of this Section, his or her beneficiary, after the death of the member and prior to the payment to him or her of the death benefit, or any part thereof, may elect by writing filed with the Board to have the death benefit paid to him or her in the manner provided in subsection A. of this Section. C. When an election has been made to have the death benefit paid in accordance with subsection A. of this Section, the first of such installments shall be paid on the first day of the month or two-week period next following the date when the death benefit would otherwise be payable, and one (1) of such installments shall be paid on the first day of each month or two-week period thereafter. Such monthly or biweekly installment shall be the actuarial equivalent of the portion of the death benefit to be paid in installments on the date that such death benefit would otherwise be payable. (Prior code § 2904.1510; Ords. 29120, 29904.)

San José Municipal Code § 3.28.1520 Surviving child's or children's allowances - How paid.

3.28.1520 - Surviving child's or children's allowances - How paid. A. Except as otherwise provided in this Chapter, any survivorship allowance which is payable under the provisions of this Chapter to any surviving child or children shall be paid to such parent or parents of such child or children as have custody of such child or children, for the benefit of such child or children, or if a guardian or guardians have been appointed for such child or children, and the Board shall have received notice thereof, to the guardian or guardians of such child or children, for the benefit of such child or children. B. Notwithstanding the above, however, the Board, in its discretion, may at any time or from time to time pay said allowances to any other person or persons, for the benefit of such child or children, or directly to the child or children, if it finds that such will be for the best interest of the children. In addition, the Board may, if it has reason to believe that such allowances are not being used for the benefit of the child or children entitled thereto, suspend such payments, or any of them, until such time as it receives assurance, satisfactory to the Board, that such payments will be used for the benefit of the children entitled thereto. No person shall have any claim against the Board or any member thereof because of or by reason of the Board's suspension of any payments or by reason of the Board's changing the person or persons to whom such payments are made. (Prior code § 2904.1511; Ords. 22429, 29120, 29904.)

San José Municipal Code § 3.28.1525 Surviving children's allowances - Payment to custodian or trustee.

3.28.1525 - Surviving children's allowances - Payment to custodian or trustee. A. A member of this system or any person who has retired from this system, other than a tier 2 member, may designate, on a beneficiary designation form approved by the board, that any survivorship allowance which is payable under the provisions of this chapter to any surviving child or children of the member or retired person shall be paid to any of the following: 1. A named custodian for such child under the California Uniform Transfers to Minors Act. 2. A trustee of a trust created for the benefit of such child or children under such member's or retired person's will. 3. A trustee of an inter vivos trust created for the benefit of such child or children. B. Payment to Custodian. Such survivorship allowance shall be paid to a custodian under the California Uniform Transfers to Minors Act named in a beneficiary designation form if all of the following conditions are met: 1. The board is provided with proof to the board's satisfaction that such person is in fact the custodian named in the beneficiary designation form. 2. The board is provided with written acknowledgement of receipt of payment as custodian, as provided by California Probate Code Section 3908, on such form as the board may provide, together with execution of such additional waivers, indemnification, or other documents as the board may require. C. Payment to Trustee of Testamentary Trust. Such survivorship allowance shall be paid to a trustee named in a member's or retired person's will if all of the following conditions are met: 1. Such member's or retired person's beneficiary designation form specifically designates a trust created under such person's will as beneficiary. 2. Such member's or retired person's will contains provisions specifically creating such trust or trusts for the benefit of such member's or retired person's surviving child or children. 3. The trustee is named in such member's or retired person's will. 4. The board is provided with a filed, endorsed, and certified copy of a court order which determines the validity of such trust or trusts and orders the establishment of such trust or trusts. D. Payment to Trustee of Inter Vivos Trust. Such survivorship allowance shall be paid to the trustee of an inter vivos trust if all of the following conditions are met: 1. Such trust is clearly identified to the board's satisfaction on such member's or retired person's beneficiary designation form on file with the board. 2. Such trust contains provisions specifically creating a trust or trusts for the benefit of such member's or retired person's surviving child or children. 3. The board is provided with a filed, endorsed, and certified copy of a court order pursuant to California Probate Code Section 1138.1 or similar statute authorizing and approving payment of such benefit to such trust. E. Unless and until the conditions of either B., C., or D. of this Section 3.28.1525 are met, the payment of such survivorship allowance shall be made in accordance with Section 3.28.1520 of this chapter. (Ords. 22429, 29120.)

San José Municipal Code § 3.28.1530 Posthumous children.

3.28.1530 - Posthumous children. For purposes of this part, a posthumously born child shall be deemed to be a surviving child in existence at the time of the member's death, but shall not be entitled to any allowance hereunder for any time prior to its actual birth. (Prior code § 2904.1512.)

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_PT11DEBEREFetched: 11/1/2026