San Jose Municipal Code Part 8 Survivorship and Death Benefits

A. The benefits specified in this section shall be payable in accordance with this section in each of the following situations:

1. Where a member who is entitled to immediate retirement for service under the provisions of this chapter dies on or after August 6, 1970, while a member of this plan and before being retired for service or disability;

2. Where a person who is entitled to immediate retirement for service under the provisions of this chapter is granted a leave of absence without full compensation and pay and such person dies on or after August 6, 1970, while on such leave of absence and before being retired for service or disability;

3. Where a person who has been retired for service under the provisions of this chapter dies on or after August 6, 1970, before receiving any service retirement allowance or pay;

4. Where a person who has been retired for a service-connected disability under the provisions of this chapter dies on or after August 6, 1970, during the service-connected disability retirement and before receiving any disability retirement allowance or pay;

5. Where a member dies on or after August 6, 1970, while a member of this plan, but before being retired hereunder for service or disability, if the death arises out of and in the course of his or her employment with the city.

B. Definitions. For the purposes of this section, the following terms shall have the following meanings:

1. "Surviving spouse" means the person to whom the deceased person described in Subsection A. above was married at the time of the deceased person's death and who survives the deceased person's death, and none other.

2. "Surviving domestic partner" means the person with whom the deceased person described in Subsection A. above, at the time of the deceased person's death had established a domestic partnership and who survives the deceased person's death, and none other.

3. "Surviving child" and "surviving children" mean the natural or adopted child or children of the deceased person described in Subsection A. above that meets all of the following requirements:

a. The child survives the deceased person's death; and

b. The child is neither married nor a member of a domestic partnership at the time of the deceased person's death; and

c. The child is under the age of eighteen years at the time of the deceased person's death; and

d. The child is in existence or conceived at the time of the deceased person's death; and

e. If the child is an adopted child of the deceased person, the adoption was completed pursuant to law prior to the deceased person's death.

C. Contributions and interest payable to surviving spouse or surviving domestic partner. If the deceased person described in Subsection A. above (other than a tier 2 member) leaves a surviving spouse or surviving domestic partner, the surviving spouse or surviving domestic partner, whichever is applicable, shall be entitled to receive and shall be paid from the retirement fund a sum of money equal to all contributions of the deceased person to the retirement fund which have not previously been withdrawn from the retirement fund by the deceased person, plus interest on the unwithdrawn contributions as earned by the fund during the deceased person's period of aggregate service, but in no case shall the interest be in excess of two percent per annum.

D. Contributions and interest payable to surviving children where no surviving spouse and no surviving domestic partner.

1. If the deceased person described in Subsection A. above is not a tier 2 member and leaves no surviving spouse and no surviving domestic partner, but leaves a surviving child or surviving children, the eligible surviving child or children shall be entitled to receive and shall be paid from the retirement fund a sum of money equal to all contributions of the deceased person to the retirement fund which have not previously been withdrawn from the retirement fund by the deceased person, plus interest on the unwithdrawn contributions as earned by the fund during the deceased person's period of aggregate service, but in no case shall the interest be in excess of two percent per annum. The sum to be paid to each eligible child shall be determined by dividing the total amount of unwithdrawn contributions plus interest thereon, by the number of eligible surviving children.

2. In the event that the estate of the deceased person establishes by appropriate court action a legal claim to all or any part of the contributions and interest paid to the surviving child or children under this Subsection D. because of the provisions of San José Municipal Code Section 2903.250(d) as it existed on August 6, 1970 (as originally adopted by Ordinance No. 9506), monthly allowances or benefits which would otherwise be payable to any surviving child or surviving children under and by virtue of Subsection G. of this section shall be withheld and not paid to such surviving child or children until such time as the total amount of allowances so withheld equals the total amount which the court establishes is due to the estate. In the event such withholding is insufficient to pay such amount due the estate, the city may recover by suit that portion of the amount due the estate which cannot be recovered by withholding such monthly allowances or benefits.

E. Contributions and interest payable to estate where there is no surviving spouse, no surviving domestic partner and no surviving children. If the deceased person described in Subsection A. above leaves no surviving spouse, no surviving domestic partner and no eligible surviving child or children, the deceased person's estate shall be entitled to receive and shall be paid from the retirement fund a sum of money equal to all contributions of the deceased person to the retirement fund which have not previously been withdrawn from the retirement fund by the deceased person, plus interest on the unwithdrawn contributions as earned by the fund during the deceased person's period of aggregate service, but in no case shall the interest be in excess of two percent per annum.

F. Survivorship allowance payable to surviving spouse or surviving domestic partner. If the deceased person described in Subsection A. above who is not a tier 2 member leaves a surviving spouse or a surviving domestic partner, such surviving spouse or surviving domestic partner, whichever is applicable, shall be entitled to receive and shall be paid from the retirement fund a monthly survivorship allowance in the amount specified in Section 3.36.1270 of this chapter, subject to the provisions of Subsection H. of this section and to the following:

1. If the deceased person died prior to October 1, 1999, the monthly allowance payable to the surviving spouse shall be paid for the remainder of the surviving spouse's life.

2. Except as provided in Section 3.36.1290, and except in the case where the deceased person had elected an optional settlement pursuant to Part 9.5 of this chapter, if the deceased person died on or after October 1, 1999, but prior to January 1, 2005, the monthly allowance payable to the surviving spouse shall be paid until the surviving spouse marries or dies, whichever is the earlier date, and no longer.

3. Except as provided in Section 3.36.1290, and except in the case where the deceased person had elected an optional settlement pursuant to Part 9.5 of this chapter, if the deceased person died on or after January 1, 2005, the monthly allowance payable to the surviving spouse or surviving domestic partner shall be paid until the surviving spouse or surviving domestic partner marries, establishes a domestic partnership or dies, whichever is the earlier date, and no longer.

G. Survivorship allowance payable to surviving child or children. If the deceased person described in Subsection A. above is not a tier 2 member and leaves a surviving child or children, the eligible surviving child, or each of the eligible surviving children if there is more than one surviving child, shall be entitled to receive and shall be paid from the retirement fund, subject to the provisions of and except as provided in Subsection H. of this section, until he or she marries, establishes a domestic partnership, attains the age of eighteen years or dies, whichever is the earlier date, and no longer, a monthly survivorship allowance in the amount specified in Section 3.36.1300 of this chapter.

H. Deduction from survivorship allowances.

1. Anything elsewhere in this section or this part to the contrary notwithstanding, all of the monthly allowances or benefits which would otherwise be payable to any surviving spouse, surviving domestic partner, eligible surviving child or surviving children pursuant to the provisions of Subsections F. and G. of this section shall be withheld and not paid to the persons who would otherwise be entitled to the same until such time as the total amount of allowances so withheld equals the total amount paid or payable to a surviving spouse or surviving domestic partner of the deceased person or to the surviving child or children of the deceased person or to the estate of the deceased person pursuant to the provisions of Subsections C., D. or E. of this section, and the allowances so withheld shall never be paid to the persons who would otherwise have been entitled to the same, it being the intention that the monthly survivorship allowances described in Subsections F. and G. shall not be owing or payable and shall not commence until such time as there shall have elapsed from and after the death of the deceased person a number of months equal to that number obtained by dividing the total amount of money which is payable or paid to the surviving spouse or surviving domestic partner of the deceased person or to the surviving child or children of the deceased person or to the estate of the deceased person pursuant to the provisions of the above Subsections C., D. or E. by the sum of the monthly survivorship allowances which would otherwise be payable to a surviving spouse or surviving domestic partner and to a surviving child or children pursuant to the provisions of Subsections F. and G. of this section. By way of explanation, if the deceased person should die leaving a surviving spouse or surviving domestic partner and surviving children, and if the amount payable to the spouse or domestic partner pursuant to the provisions of Subsection C. were nine hundred dollars and the monthly amount payable to the spouse or domestic partner pursuant to Subsection F. were two hundred dollars and the amount payable to surviving children pursuant to Subsection G. were one hundred dollars, none of the allowances provided for in Subsections F. and G. would become due or payable until there shall have elapsed from and after the deceased person's death a number of months equal to nine hundred dollars divided by three hundred dollars, or three months. No such allowance shall be paid or be payable to a surviving spouse or surviving domestic partner if, at the time such allowance becomes payable, the surviving spouse or surviving domestic partner shall have died, remarried or established a domestic partnership; and no such allowance shall be paid or payable to any surviving child if at the time such allowance becomes payable to such child he or she shall have died, married, established a domestic partnership or attained the age of eighteen years.

2. Notwithstanding any of the foregoing to the contrary, contributions and interest payable under Subsections C., D. and E., at the option of the eligible recipient thereof, either shall be payable in a lump sum or shall be payable monthly in an amount equal to the amount of the monthly survivorship allowance payable pursuant to the provisions of Subsections F. and G. of this section, until the contributions and interest are exhausted, at which time payment of the monthly survivorship allowance shall commence. In the event that all the eligible recipients die before receiving the total amount of contributions and interest, the amount remaining to be paid shall be paid to the estate of the eligible recipient or, if more than one, the estate of the eligible recipient who dies last. In no event shall the eligible recipient who elects not to receive a lump sum payment of contributions and interest receive any less or more than the monthly survivorship allowance in any month even though the contributions and interest are exhausted within a month.

3. The particular recipient or parent or guardian, in the case of a minor, or representative of an estate, in the case of an estate, shall exercise the above option in writing no later than thirty days after death of the deceased person on a form to be furnished by this system. Failure to make such election in writing shall be deemed an election to receive the contributions and interest in a lump sum payment.

I. Minimum amount payable to estate where no surviving spouse, no surviving domestic partner and no surviving children. If the deceased person described in Subsection A. is not a tier 2 member and should leave no surviving spouse, no surviving domestic partner and no eligible surviving child or children, and if, in addition, the amount payable to the deceased person's estate pursuant to the provisions of Subsection E. of this section should be less than one thousand dollars, then in that event there shall be paid from the retirement fund to the estate such additional amount as would, when added to the amount payable to the estate under the provisions of Subsection E., equal one thousand dollars.

J. Anything herein in this part to the contrary notwithstanding, no persons other than those above specified shall be entitled to or receive any benefits or allowances whatsoever because of or as a result of the death of any person described in Subsection A. above, and no moneys other than those above specified shall be paid or payable to the survivors or estate of the deceased person.

K. Notwithstanding any other provision of this Part 8, survivor benefits with respect to a tier 2 member are payable as provided in Section 3.36.1205.

(Prior code § 2903.250; Ords. 19478, 23807, 25936, 26901, 27711, 27712, 27768, 29266, 29879.)

If the deceased person was a tier 2 member on or after March 31, 2017 and died prior to retirement, the tier 2 member shall receive the same death benefits as provided to other members of this plan under this Part 8; provided, however, that in no event shall any such benefit exceed a maximum of eighty percent of the tier 2 member's final compensation.

(Ords. 29266, 29879.)

A. The benefits specified in this section shall be payable in accordance with this section in each of the following situations:

1. Where a member who is not entitled to immediate retirement for service dies on or after August 6, 1970, while a member of this plan and prior to being retired for service or disability, if such member, at the time of his or her death, is entitled to credit for not less than two years' service and if, in addition, the death does not arise out of and in the course of his or her employment with the city;

2. Where a person who has been retired under this plan for a nonservice-connected disability dies on or after August 6, 1970, during his or her nonservice-connected disability retirement before receiving any disability allowance or pay.

B. Definitions. For the purposes of this section, the following terms shall have the following meanings:

1. "Surviving spouse" means the person to whom the deceased person described in Subsection A. above was married at the time of said deceased person's death, and who survives said deceased person's death, and none other.

2. "Surviving domestic partner" means the person with whom the deceased person described in Subsection A. above, at the time of the deceased person's death, had established a registered domestic partnership and who survives the deceased person's death, and none other.

3. "Surviving child" and "surviving children" mean the natural or adopted child or children of the deceased person described in Subsection A. above that meets all of the following requirements:

a. The child survives the deceased person's death; and

b. The child is neither married nor a member of a domestic partnership at the time of the deceased person's death; and

c. The child is under the age of eighteen years at the time of the deceased person's death; and

d. If the child is an adopted child of the deceased person, the adoption was completed pursuant to law prior to the deceased person's death.

C. Contributions and interest payable to surviving spouse or surviving domestic partner. If the deceased person described in Subsection A. above leaves a surviving spouse or surviving domestic partner, the surviving spouse or surviving domestic partner shall be entitled to receive and shall be paid from the retirement fund a sum of money equal to all contributions of the deceased person to the retirement fund which have not previously been withdrawn from the retirement fund by the deceased person, plus interest on the unwithdrawn contributions as earned by the fund during the deceased person's period of aggregate service, but in no case shall the interest be in excess of two percent per annum.

D. Contributions and interest payable to surviving children where no surviving spouse and no surviving domestic partner.

1. If the deceased member leaves no surviving spouse and no surviving domestic partner but leaves a surviving child or surviving children, the eligible surviving child or children shall be entitled to receive and shall be paid from the retirement fund a sum of money equal to all contributions of the deceased person to the retirement fund which have not previously been withdrawn from the retirement fund by the deceased person, plus interest on the unwithdrawn contributions as earned by the fund during the deceased person's period of aggregate service, but in no case shall the interest be in excess of two percent per annum. The sum to be paid to each child shall be determined by dividing the total amount of unwithdrawn contributions plus interest thereon, by the number of surviving children.

2. In the event that the estate of the deceased person establishes by appropriate court action a legal claim to all or any part of the contributions and interest paid to the surviving child or children under this Subsection D. because of the provisions of San José Municipal Code Section 2903.251(d) as it existed on August 6, 1970 (as originally adopted by Ordinance No. 9506), monthly allowances or benefits which would otherwise be payable to any surviving child or surviving children pursuant to Subsection G. of this section shall be withheld and not paid to such surviving child or children until such time as the total amount of allowances so withheld equals the total amount which the court establishes is due to the estate. In the event such withholding is insufficient to pay such amount due the estate, the city may recover by suit that portion of the amount due the estate which cannot be recovered by withholding such monthly allowances or benefits.

E. Contributions and interest payable to estate where there is no surviving spouse, no surviving domestic partner and no surviving children. If the deceased person described in Subsection A. above leaves no surviving spouse, no surviving domestic partner and no eligible surviving child or children, the deceased person's estate shall be entitled to receive and shall be paid from the retirement fund a sum of money equal to all contributions of the deceased person to the retirement fund which have not previously been withdrawn from the retirement fund by the deceased person, plus interest on the unwithdrawn contributions as earned by the fund during the deceased person's period of aggregate service, but in no case shall the interest be in excess of two percent per annum.

F. Survivorship allowance payable to surviving spouse or surviving domestic partner. If the deceased member leaves a surviving spouse or surviving domestic partner, such surviving spouse or surviving domestic partner, whichever is applicable, shall be entitled to receive and shall be paid from the retirement fund a monthly survivorship allowance in the amount specified in Section 3.36.1280 of this chapter, subject to the provisions of Subsection H. of this section and to the following:

1. If the deceased person died prior to October 1, 1999, the monthly allowance payable to the surviving spouse shall be paid for the remainder of the surviving spouse's life.

2. Except as provided in Section 3.36.1290, and except in the case where the deceased person had elected an optional settlement pursuant to Part 9.5 of this chapter, if the deceased person died on or after October 1, 1999, but prior to January 1, 2005, the monthly allowance payable to the surviving spouse shall be paid until the surviving spouse marries or dies, whichever is the earlier date, and no longer.

3. Except as provided in Section 3.36.1290, and except in the case where the deceased person had elected an optional settlement pursuant to Part 9.5 of this chapter, if the deceased person died on or after January 1, 2005, the monthly allowance payable to the surviving spouse or surviving domestic partner shall be paid until the surviving spouse or surviving domestic partner marries, establishes a domestic partnership or dies, whichever is the earlier date, and no longer.

G. Survivorship allowance payable to surviving child or children. If the deceased person described in Subsection A. above leaves a surviving child or surviving children, the eligible surviving child, or each of the eligible surviving children, if there is more than one surviving child, shall be entitled to receive and shall be paid from the retirement fund, subject to the provisions of and except as provided in Subsection H. of this section, until he or she marries, establishes a domestic partnership, attains the age of eighteen years or dies, whichever is the earlier date, and no longer, as a monthly survivorship allowance, the amount of monthly survivorship allowance specified in Section 3.36.1300 of this chapter.

H. Deduction from survivorship allowance.

1. Anything elsewhere in this section of this part to the contrary notwithstanding, all of the monthly allowances or benefits which would otherwise be payable to any surviving spouse, surviving domestic partner, eligible surviving child or surviving children, pursuant to the provisions of Subsections F. and G. of this section, shall be withheld and not paid to the persons who would otherwise be entitled to the same until such time as the total amount of allowances so withheld equals the total amount paid or payable to a surviving spouse or surviving domestic partner of the deceased person or to the surviving child or children of the deceased person or to the estate of the deceased person pursuant to the provisions of Subsections C., D. or E. of this section, and the allowances so withheld shall never be paid to the persons who would otherwise have been entitled to the same, it being the intention that the monthly survivorship allowances described in Subsections F. and G. shall not be owing or payable and shall not commence until such time as there shall have elapsed from and after, the death of the deceased person a number of months equal to that number obtained by dividing the total amount of money which is payable or paid to the surviving spouse or surviving domestic partner of the deceased person or to the surviving child or children of the deceased person or to the estate of the deceased person pursuant to the provisions of the above Subsections C., D. or E. by the sum of the monthly survivorship allowances which would otherwise be payable to a surviving spouse or surviving domestic partner or to a surviving child or children pursuant to the provisions of Subsections F. and G. of this section. By way of explanation, if the deceased person should die leaving a surviving spouse or surviving domestic partner and surviving children, and if the amount payable to the spouse or domestic partner pursuant to the provisions of Subsection C. were nine hundred dollars and the monthly amount payable to the spouse or domestic partner pursuant to Subsection F. were two hundred dollars and the amount payable to surviving children pursuant to Subsection G. were one hundred dollars, none of the allowances provided for in Subsections F. and G. would become due or payable until there shall have elapsed from and after the deceased person's death a number of months equal to nine hundred dollars divided by three hundred dollars, or three months. No such allowance shall be paid or be payable to a surviving spouse or surviving domestic partner if, at the time such allowance becomes payable, the surviving spouse or surviving domestic partner shall have died; and no such allowance shall be paid or payable to any surviving child if, at the time such allowance becomes payable to such child, he or she shall have died, married or attained the age of eighteen years.

2. Notwithstanding any of the foregoing to the contrary, contributions and interest payable under Subsections C., D. and E., at the option of the eligible recipient thereof, either shall be payable in a lump sum or shall be payable monthly in an amount equal to the amount of the monthly survivorship allowance payable pursuant to the provisions of Subsections F. and G. of this section, until the contributions and interest are exhausted, at which time payment of the monthly survivorship allowance shall commence. In the event that all the eligible recipients die before receiving the total amount of contributions and interest, the amount remaining to be paid shall be paid to the estate of the eligible recipient or, if more than one, the estate of the eligible recipient who dies last. In no event shall the eligible recipient who elects not to receive a lump sum payment of contributions and interest receive any less or more than the monthly survivorship allowance in any month even though the contributions and interest are exhausted within a month.

3. The particular recipient or parent or guardian, in the case of a minor, or representative of an estate, in the case of an estate, shall exercise the above option in writing no later than thirty days after the death of the deceased person on a form to be furnished by this system. Failure to make such election in writing shall be deemed an election to receive the said contributions and interest in a lump sum payment.

I. Minimum amount payable to estate where there is no surviving spouse, no surviving domestic partner and no surviving children. If the deceased person described in Subsection A. above is not a tier 2 member and should leave no surviving spouse, no surviving domestic partner and no eligible surviving child or children, and if, in addition, the amount payable to the deceased person's estate pursuant to the provisions of Subsection E. of this section should be less than one thousand dollars, then in that event there shall be paid from the retirement fund to the estate such additional amount as would, when added to the amount payable to the estate under the provisions of Subsection E., equal one thousand dollars.

J. Anything herein in this part to the contrary notwithstanding, no persons other than those above specified shall be entitled to or receive any benefits or allowances whatsoever because of or as a result of the death of any person described in Subsection A. above, and no moneys other than those above specified shall be paid or payable to the survivors or estate of the deceased person.

K. If the deceased person was a tier 2 member who died on or after March 31, 2017, survivor benefits shall be payable following the tier 2 member's death in accordance with Section 3.36.1205.

(Prior code § 2903.252; Ords. 23807, 25936, 27711, 27712, 27768, 29266, 29879.)

If a member of this system is retired hereunder for disability and has received any disability retirement allowance or pay, but such person, while on such disability retirement is reemployed by the city, without termination of the disability retirement, in a position or class from which he or she was retired for disability, and if such person should die while he or she is both on such disability retirement and while he or she is so reemployed by the city, his or her death shall be deemed to have occurred after such person has received retirement pay and neither his or her surviving spouse, surviving child or children nor estate shall be entitled to receive or be paid any benefits under and by virtue of the provisions of Sections 3.36.1200 or 3.36.1210 of this chapter.

(Prior code § 2903.252; Ord. 23807)

A. The benefits specified in this section shall be payable in accordance with this section in each of the following situations:

1. Where a person who has been retired for service under the provisions of this chapter dies after receiving any service retirement allowance or pay;

2. Where a person who has been retired for a service-connected disability under the provisions of this chapter dies during his or her service-connected disability retirement after receiving any disability retirement allowance or pay.

B. Definitions. For the purposes of this section, the following terms shall have the following meanings:

1. "Surviving spouse" means the person who survives the deceased person and who was married to the deceased person both at the time of the deceased person's death and at the time the deceased person was retired for service or disability, and no other person. A person married to the deceased person at the time of the deceased person's death or at the time the deceased person was retired is not a "surviving spouse" unless he or she was married to the deceased person at both times.

2. "Surviving domestic partner" means the person with whom the deceased person described in Subsection A. above, both at the time of the deceased person's death and at the time the deceased person was retired for service or disability, had established a domestic partnership and who survives the deceased person's death, and no other person. A person in a domestic partnership with the deceased person at the time of the deceased person's death or at the time the deceased person was retired is not a "surviving domestic partner" unless he or she was a domestic partner of the deceased person at both times.

3. "Surviving child" or "surviving children" means the natural or adopted child or children of such deceased person that meets all of the following requirements:

a. The child survives the deceased person's death; and

b. The child is neither married nor a member of a domestic partnership at the time of the deceased person's death; and

c. The child is under the age of eighteen years at the time of the deceased person's death; and

d. The child is in existence or conceived at the time of the deceased person's death; and

e. If the child is an adopted child of the deceased person, the adoption was completed pursuant to law prior to the time of the deceased person's death.

C. Survivorship allowance payable to surviving spouse or surviving domestic partner. If the deceased person described in Subsection A. above leaves a surviving spouse or a surviving domestic partner, the surviving spouse or surviving domestic partner, whichever is applicable, shall be entitled to receive and shall be paid from the retirement fund a monthly survivorship allowance in the amount specified in Section 3.36.1270, subject to the following:

1. If the deceased person retired or died prior to October 1, 1999, the monthly allowance payable to the surviving spouse shall be paid for the remainder of the surviving spouse's life.

2. Except as provided in Section 3.36.1290, and except in the case where the deceased person had elected an optional settlement pursuant to Part 9.5 of this chapter, if the deceased person retired or died on or after October 1, 1999, but prior to January 1, 2005, the monthly allowance payable to the surviving spouse shall be paid until the surviving spouse marries or dies, whichever is the earlier date, and no longer.

3. Except as provided in Section 3.36.1290, and except in the case where the deceased person had elected an optional settlement pursuant to Part 9.5 of this chapter, if the deceased person died on or after January 1, 2005, the monthly allowance payable to the surviving spouse or surviving domestic partner shall be paid until the surviving spouse or surviving domestic partner marries, establishes a domestic partnership or dies, whichever is the earlier date, and no longer.

4. If the deceased person was a tier 2 member who died on or after March 31, 2017, notwithstanding any other provisions of this Section 3.36.1230, benefits shall be payable following the tier 2 member's death, in accordance with Section 3.36.1235.

D. Survivorship allowance payable to surviving child or children. If the deceased person described in Subsection A. above leaves a surviving child or surviving children, the eligible surviving child, or each of the eligible surviving children if there is more than one surviving child, shall be entitled to receive and shall be paid from the retirement fund until he or she marries, establishes a domestic partnership, attains the age of eighteen years or dies, whichever is the earlier date, and no longer, as a monthly survivorship allowance, the amount of monthly survivorship allowance specified in Section 3.36.1300. This Subsection D. shall not apply to tier 2 members.

E. Minimum amount payable to estate where there is no surviving spouse, no surviving domestic partner and no surviving children. If the deceased person described in Subsection A. above should die leaving no surviving spouse, no surviving domestic partner and no surviving child or children, there shall be paid from the retirement fund to the deceased person's named beneficiary or estate as a death benefit the sum of one thousand dollars and no more. This Subsection E. shall not apply to tier 2 members.

F. Anything in this chapter to the contrary notwithstanding, no persons other than those specified above shall be entitled to or receive any benefits or allowances whatsoever because of or as a result of the death of a person described in Subsection A. of this section, and no moneys other than those specified above shall be paid or payable to the survivors or estate of the deceased person.

(Prior code § 2903.253; Ords. 23807, 25936, 27711, 27712, 27768, 29266, 29879.)

A. Effective March 31, 2017, the benefits specified in this section shall be payable in accordance with this section where a tier 2 member who has been retired for service under the provisions of this chapter dies after receiving any service retirement allowance or pay, or where a tier 2 member has retired for a service-connected disability under the provisions of the chapter dies during his or her service-connected disability retirement after receiving any disability retirement allowance or pay.

B. Definitions. For the purposes of this section, the following terms shall have the following meanings:

1. "Surviving spouse" means the person who survives the deceased person and who was married to the deceased person both at the time of the deceased person's death and at the time the deceased person was retired for service or disability, and no other person. A person married to the deceased person at the time of the deceased person's death or at the time the deceased person was retired is not a "surviving spouse" unless he or she was married to the deceased person at both times.

2. "Surviving domestic partner" means the person with whom the deceased person described in Subsection A. above, both at the time of the deceased person's death and at the time the deceased person was retired for service or disability, had established a domestic partnership and who survives the deceased person's death and no other person. A person in a domestic partnership with the deceased person at the time of the deceased person's death or at the time the deceased person was retired is not a "surviving domestic partner" unless he or she was a domestic partner of the deceased person at both times.

C. Survivorship allowance payable to surviving spouse or surviving domestic partner. Except where the deceased person had elected an applicable optional settlement option, the monthly allowance payable to the surviving spouse or surviving domestic partner shall be paid until the surviving spouse or surviving domestic partner marries, establishes domestic partnership or dies, whichever is the earlier date, and no longer; if the deceased person described in Subsection A. above leaves a surviving spouse or surviving domestic partner, the surviving spouse or surviving domestic partner, whichever is applicable, shall be entitled to receive and shall be paid from the retirement fund a monthly survivorship allowance equal to fifty percent joint and survivor annuity as determined by the plan's actuaries.

D. Anything in this chapter to the contrary notwithstanding, no person other than those specified above shall be entitled to or receive any benefits or allowances whatsoever because of or as a result of the death of a person described in Subsection A of this section, and no money other than those specified above shall be paid or payable to the survivors or estate of the deceased person.

(Ord. 29879.)

A. The benefits specified in this section shall be payable in accordance with this section in the following situation:

1. Where a person who has been retired for a nonservice-connected disability under the provisions of this chapter dies while on such nonservice-connected disability retirement after receiving any disability retirement allowance or pay without becoming a tier 2 member.

2. This Section 3.36.1240 shall not apply to tier 2 members.

B. Definitions. For the purposes of this section, the following terms shall have the following meanings:

1. "Surviving spouse" means the person who survives the deceased person described in Subsection A. above and who was married to the deceased person both at the time of the deceased person's death and at the time the deceased person was retired for disability, and no other person. A person married to the deceased person at the time of the deceased person's death or at the time such deceased person was retired for disability is not a "surviving spouse" unless he or she was married to the deceased person at both times.

2. "Surviving domestic partner" means the person with whom the deceased person described in Subsection A. above, both at the time of the deceased person's death and at the time the deceased person was retired for disability, had established a domestic partnership and who survives the deceased person's death, and no other person. A person in a domestic partnership with the deceased person at the time of the deceased person's death or at the time the deceased person was retired is not a "surviving domestic partner" unless he or she was a domestic partner of the deceased person at both times.

3. "Surviving child" or "surviving children" means the natural or adopted child or children of the deceased person described in Subsection A. above that meets all the following requirements:

a. The child survives the deceased person's death; and

b. The child is neither married nor a member of a domestic partnership at the time of the deceased person's death; and

c. The child is under the age of eighteen years at the time of the deceased person's death; and

d. The child is in existence or conceived at the time of the deceased person's death; and

e. If the child is an adopted child of the deceased person, the adoption was completed pursuant to law prior to the time of the deceased person's death.

C. Survivorship allowance payable to surviving spouse or surviving domestic partner. If the deceased person described in Subsection A. above leaves a surviving spouse or a surviving domestic partner, the surviving spouse or surviving domestic partner, whichever is applicable, shall be entitled to receive and shall be paid from the retirement fund a monthly survivorship allowance in the amount specified in Section 3.36.1280, subject to the following:

1. If the deceased person retired or died prior to October 1, 1999, the monthly allowance payable to the surviving spouse shall be paid for the remainder of the surviving spouse's life.

2. Except as provided in Section 3.36.1290, and except in the case where the deceased person had elected an optional settlement pursuant to Part 9.5 of this chapter, if the deceased person retired or died on or after October 1, 1999, but prior to January 1, 2005, the monthly allowance payable to the surviving spouse shall be paid until the surviving spouse marries or dies, whichever is the earlier date, and no longer.

3. Except as provided in Section 3.36.1290, and except in the case where the deceased person had elected an optional settlement pursuant to Part 9.5 of this chapter, if the deceased person died on or after January 1, 2005, the monthly allowance payable to the surviving spouse or surviving domestic partner shall be paid until the surviving spouse or surviving domestic partner marries, establishes a domestic partnership or dies, whichever is the earlier date, and no longer.

D. Survivorship allowance payable to surviving child or children. If the deceased person described in Subsection A. above leaves a surviving child or surviving children, the eligible surviving child, or each of the eligible surviving children if there is more than one surviving child, shall be entitled to receive and shall be paid from the retirement fund until he or she marries, establishes a domestic partnership, attains the age of eighteen years or dies, whichever is the earlier date, and no longer, as a monthly survivorship allowance, the amount of monthly survivorship allowance specified in Section 3.36.1300.

E. Minimum amount payable to estate where there is no surviving spouse, no surviving domestic partner and no surviving children. If the deceased person described in Subsection A. above leaves no surviving spouse, no surviving domestic partner and no surviving child or children, there shall be paid from the retirement fund to the deceased person's named beneficiary or estate as a death benefit the sum of one thousand dollars and no more.

F. Anything in this chapter to the contrary notwithstanding, no persons other than those specified above shall be entitled to or receive any benefits or allowances whatsoever because of or as a result of the death of a person described in Subsection A. of this section, and no moneys other than those specified above shall be paid or payable to the survivors or estate of the deceased person. For tier 2 members, survivor benefits are payable as specified in Section 3.36.1205 or 3.36.1235, as applicable.

(Prior code § 2903.254; Ords. 23807, 25936, 27711, 27712, 27768, 29266, 29879.)

A. The benefits specified in this section shall be payable in accordance with this section in each of the following situations:

1. Where a member who is entitled to credit for less than two years of service dies on or after August 6, 1970, while a member of this plan and prior to being retired for service or disability and prior to receiving any service or disability retirement allowance or pay, if his or her death does not arise out of and in the course of his or her employment with the city;

2. If a member of this plan is granted a leave of absence from city service without full city compensation and pay before being retired for service or disability, and if in addition such member is not entitled at the time he or she receives such leave of absence to immediate retirement for service, and if such person should die on or after August 6, 1970 while on such leave of absence prior to being retired for disability or service and prior to receiving any service or disability retirement allowance or pay.

B. For the purposes of this section, the following terms shall have the following meanings:

1. "Surviving spouse" means the person who survives the deceased person described in Subsection A. above and who was married to the deceased person at the time of the deceased person's death, and no other person.

2. "Surviving domestic partner" means the person with whom the deceased person described in Subsection A. above, at the time of the deceased person's death, had established a registered domestic partnership and who survives the deceased person's death, and no other person.

3. "Surviving child" and "surviving children" mean the natural or adopted child or children of the deceased person described in Subsection A. above that meets all of the following requirements:

a. The child survives the deceased person's death; and

b. The child is neither married nor a member of a domestic partnership at the time of the deceased person's death; and

c. The child is under the age of eighteen years at the time of the deceased person's death; and

d. If the child is an adopted child of the deceased person, the adoption was completed pursuant to law prior to such deceased person's death.

C. Contributions and interest payable to surviving spouse or surviving domestic partner; minimum amount payable.

1. If the deceased person described in Subsection A. above, including a tier 2 member who is not eligible for immediate retirement, leaves a surviving spouse or surviving domestic partner, the surviving spouse or surviving domestic partner, whichever is applicable, shall be entitled to receive and shall be paid from the retirement fund a sum of money equal to all contributions of the deceased person to the retirement fund which have not previously been withdrawn from the retirement fund by the deceased person, plus interest on the unwithdrawn contributions as earned by the fund during the deceased person's period of aggregate service, but in no case shall the interest be in excess of two percent per annum.

2. If the person is not a tier 2 member and the total of the unwithdrawn contributions plus interest thereon should be less than one thousand dollars, then in that event there shall be paid from the retirement fund to the surviving spouse such additional amount as would, when added to the unwithdrawn contributions and interest thereon, equal one thousand dollars.

D. Contributions and interest payable to surviving child or children; minimum amount payable.

1. If the deceased person described in Subsection A. above is not a tier 2 member and leaves no surviving spouse and no surviving domestic partner, but leaves a surviving child or surviving children, the eligible surviving child or children shall be entitled to receive and shall be paid from the retirement fund a sum of money equal to all contributions of the deceased person to the retirement fund which have not previously been withdrawn from the retirement fund by the deceased person, plus interest on the unwithdrawn contributions as earned by the fund by the deceased person's period of aggregate service, but in no case shall the interest be in excess of two percent per annum. The sum to be paid to each surviving child shall be determined by dividing the total amount of unwithdrawn contributions plus interest thereon, by the number of surviving children.

2. If the total of the unwithdrawn contributions plus interest thereon should be less than one thousand dollars, then in that event there shall be paid from the retirement fund to the surviving child or children such additional amount as would, when added to the unwithdrawn contributions and interest thereon, equal one thousand dollars. The additional sum to be paid to each surviving child shall be determined by dividing the additional amount by the number of surviving children.

3. This Subsection D. shall not apply to tier 2 members.

E. In the event that the estate of the deceased person establishes by appropriate court action a legal claim to all or any part of the contributions and interest paid to the surviving child or children under this Subsection D. because of the provisions of San José Municipal Code Section 2903.255(b) as it existed on August 6, 1970 (as originally adopted by Ordinance No. 9506), the contributions and interest thereon which would otherwise be payable to any surviving child or surviving children pursuant to Subsection D.1., above, shall be withheld and not paid to such surviving child or children until such time as the total amount of contributions and interest thereon so withheld equals the total amount of contributions and interest which the court action establishes is due the estate. In the event such withholding is insufficient to pay such amount due the estate, the city may recover by suit that portion of the amount due the estate which cannot be recovered by withholding such contributions and interest thereon.

F. Contributions and interest payable to estate where there is no surviving spouse, no surviving domestic partner and no surviving children; minimum amount payable.

1. If the deceased person described in Subsection A. above is not a tier 2 member and leaves no surviving spouse, no surviving domestic partner and no surviving child or children, the deceased person's estate shall be entitled to receive and shall be paid from the retirement fund a sum of money equal to all contributions of the deceased person to the retirement fund which have not previously been withdrawn from the retirement fund by said deceased person, plus interest on the unwithdrawn contributions as earned by the fund during the deceased person's period of aggregate service, but in no case shall the interest be in excess of two percent per annum.

2. If the total of the unwithdrawn contributions plus interest thereon should be less than one thousand dollars, and the person is not a tier 2 member, then in that event there shall be paid from the retirement fund to the deceased person's estate such additional amount as would, when added to the unwithdrawn contributions and interest thereon, equal one thousand dollars.

G. Anything in this chapter to the contrary notwithstanding, no persons other than those specified above shall be entitled to or receive any benefits or allowances whatsoever because of or as a result of the death of a person described in Subsection A. of this section, and no moneys other than those specified above shall be paid or payable to the surviving spouse, surviving domestic partner surviving child or children, or estate of the deceased person.

H. Amount payable for tier 2 members. Survivor benefits with respect to a tier 2 member are payable as provided in Section 3.36.1205.

(Prior code § 2903.255; Ords. 23807, 27712, 27768, 29266.)

A. If a person who becomes a member of this plan because of the reason set forth in Section 3.36.760 and who has not become a tier 2 member should die before he or she reaches fifty-five years of age, such person's surviving spouse, surviving domestic partner, surviving child or children (as such terms are defined in Section 3.36.1200) or estate shall be entitled under the conditions described in Section 3.36.1250C., D., or E., whichever is applicable, to one of the following:

1. Either to the return from the retirement fund of a sum of money equal to the deceased person's contributions to the retirement fund, plus interest thereon to the date of death, as earned by such fund, said interest not to exceed two percent per annum, or to the sum of one thousand dollars, whichever is greater; or

2. If the death because of which the survivorship allowance is payable arose out of and in the course of the deceased person's employment with the city, as a result of injury or disease arising out of and in the course of the deceased person's employment with the city, while the person was an employee of the city and a member of this plan, and a survivorship allowance is not payable pursuant to any other provision of this chapter, either the return from the retirement fund of a sum of money equal to the deceased person's contributions to the retirement fund, plus interest thereon to the date of death, as earned by such fund, said interest not to exceed two percent per annum, or to the sum of one thousand dollars, whichever is greater.

B. For the purposed of this section, if a surviving spouse or surviving domestic partner marries or establishes a domestic partnership, such marriage or domestic partnership shall not deprive the surviving spouse or surviving domestic partner of payment hereunder, provided he or she either is married to the deceased person at the time of the deceased person's death or is a domestic partner of the deceased person at the time of the deceased person's death.

(Prior code § 2903.255a; Ords. 19123, 23807, 26901, 27712, 29266.)

Whenever in any other section of this Part 8 it is stated that a surviving spouse or surviving domestic partner shall be entitled to receive and be paid from the retirement fund the monthly survivorship allowance specified in this section, the surviving spouse or surviving domestic partner, whichever is applicable, shall be entitled to receive and shall be paid, subject to other provisions of this chapter including Sections 3.36.1200 and 3.36.1230, the following monthly survivorship allowance:

A. Where Deceased Died or Retired Prior to August 1, 1968. If the person because of whose death the surviving spouse is entitled to a monthly survivorship allowance died or retired from city service prior to August 1, 1968, the amount of monthly survivorship allowance payable to the surviving spouse shall be:

1. An amount equal to twenty-eight and one hundred twenty-five thousandths (28.125) percent of the deceased person's final compensation as defined in Section 3.36.020.5, less the amount specified in Section 3.36.1340; or

2. If the deceased was retired for service-connected disability, an amount equal to twenty-eight and one hundred twenty-five thousandths (28.125) percent of the deceased person's final compensation, as defined in Section 3.36.020.5; or

3. If the death because of which the survivorship allowance is payable arose out of and in the course of the deceased person's employment with the city, or as a result of an injury or disease arising out of and in the course of the deceased person's employment with the city, while the deceased person was an employee of the city and a member of this plan, and before he or she was retired for service or disability, then in such event the amount of the monthly survivorship allowance shall be an amount equal to thirty-seven and one-half percent of the deceased person's final compensation as defined in Section 3.36.020.5.

B. Where Deceased Did Not Die or Retire Prior to August 1, 1968. If the person because of whose death the surviving spouse or surviving domestic partner is entitled to a monthly survivorship allowance did not die or retire from city service prior to August 1, 1968, then, except as provided in subsection C., D. or E. of this section and subject to the optional settlement provisions of Part 9.5 of this chapter, the amount of monthly survivorship allowance payable to the surviving spouse or surviving domestic partner, whichever is applicable, shall be:

1. An amount equal to thirty-seven and five tenths percent of the deceased person's final compensation as defined in Section 3.36.020.5, less the amounts specified in Section 3.36.1340; or

2. If the deceased was retired for service-connected disability, an amount equal to thirty-seven and one-half percent of the deceased person's final compensation as defined in Section 3.36.020.5; or

3. If the death because of which the survivorship allowance is payable arose out of and in the course of the deceased person's employment with the city, or as a result of an injury or disease arising out of and in the course of the deceased person's employment with the city, while the deceased person was an employee of the city and a member of this plan, and before he or she was retired for service or disability, then in such event the amount of the monthly survivorship allowance shall be an amount equal to thirty-seven and one-half percent of the deceased person's final compensation as defined in Section 3.36.020.5.

C. Where Deceased Died or Retired On or After August 1, 1968, With Less Than Twenty Years Service Credit as a Member of this Plan. If the person because of whose death the surviving spouse or surviving domestic partner is entitled to a monthly survivorship allowance died or retired from city service on or after August 1, 1968, the amount of monthly survivorship allowance payable to the surviving spouse or surviving domestic partner, whichever is applicable, shall be an amount equal to one and eight hundred seventy-five thousandths (1.875) percent of the deceased person's final compensation for each year of service or portion thereof, less the amounts specified in Section 3.36.1340, subject to a maximum of thirty-seven and one-half percent of such final compensation, in any case where:

1. At the time of the person's death the person had earned less than twenty years of service credit in this plan while employed by the city; and

2. The benefit is payable under this Section 3.36.1270 for any reason other than:

a. The death of a person before retirement where the death arises out of and in the course of the person's employment with the city; or

b. The death of a person who has been retired for service-connected disability but who dies before receipt of retirement pay; or

c. The death of a person who has been retired for service-connected disability, who is not reemployed by the city at the time of death and who dies during the disability retirement after receiving any disability retirement allowance.

D. Where Deceased Retired On or After February 4, 2000; or Deceased Died On or After February 4, 2000, But Prior to Receipt of Retirement Allowance. Notwithstanding subsection B. above, if the person because of whose death the surviving spouse or surviving domestic partner is entitled to a monthly survivorship allowance retired from city service on or after February 4, 2000, or died on or after February 4, 2000, but before receiving any retirement allowance, then the amount of monthly survivorship allowance payable to the surviving spouse or surviving domestic partner, whichever is applicable, shall, subject to a maximum of forty-two and one-half percent of the deceased person's final compensation, be an amount equal to one of the following, as applicable:

1. Thirty-seven and one-half percent of the deceased person's final compensation, less the amounts specified in Section 3.36.1340, if at the time of the deceased person's death, the deceased person was entitled to a retirement allowance of less than seventy-five percent of the deceased person's final compensation.

2. Thirty-seven and one-half percent of the deceased person's final compensation, if at the time of the deceased person's death the deceased person was entitled to a retirement allowance of less than seventy-five percent of the deceased person's final compensation and either:

a. The deceased person was retired for service-connected disability; or

b. The deceased person died prior to retirement and the death arose out of and in the course of the person's employment with the city.

3. Fifty percent of the deceased person's retirement allowance, less the amounts specified in Section 3.36.1340, if at the time of the deceased person's death the deceased person was entitled to a retirement allowance of at least seventy-five percent of the deceased person's final compensation.

4. Fifty percent of the deceased person's retirement allowance, if at the time of the deceased person's death, the deceased person was entitled to a retirement allowance of at least seventy-five percent of the deceased person's final compensation and either:

a. The deceased person was retired for service-connected disability; or

b. The person died prior to retirement and the death arose out of and in the course of the person's employment with the city.

For the purposes of this subsection D., if the deceased person died prior to retirement, references to the "deceased person's retirement allowance" or to the deceased's entitlement to a retirement allowance shall mean the retirement allowance that would have been paid had the deceased person retired on the day immediately preceding his or her death.

E. Where Deceased Was Employed in the Fire Department and Either Retired On or After July 1, 2008; or Died On or After July 1, 2008, But Prior to Receipt of Retirement Allowance. Notwithstanding subsection B. above, if the person because of whose death the surviving spouse or surviving domestic partner is entitled to a monthly survivorship allowance was employed in the fire department and either (a) retired from city service on or after July 1, 2008, or (b) died on or after July 1, 2008, but before receiving any retirement allowance, then the amount of monthly survivorship allowance payable to the surviving spouse or surviving domestic partner, whichever is applicable, shall, subject to a maximum of forty-five percent of the deceased person's final compensation, be an amount equal to one of the following, as applicable:

1. Thirty-seven and one-half percent of the deceased person's final compensation, less the amounts specified in Section 3.36.1340, if at the time of the deceased person's death, the deceased person was entitled to a retirement allowance of less than seventy-five percent of the deceased person's final compensation.

2. Thirty-seven and one-half percent of the deceased person's final compensation, if at the time of the deceased person's death, the deceased person was entitled to a retirement allowance of less than seventy-five percent of the deceased person's final compensation and either:

a. The deceased person was retired for service-connected disability; or

b. The deceased person died prior to retirement and the death arose out of and in the course of the person's employment with the city.

3. Fifty percent of the deceased person's retirement allowance, less the amounts specified in Section 3.36.1340, if at the time of the deceased person's death, the deceased person was entitled to a retirement allowance of at least seventy-five percent of the deceased person's final compensation.

4. Fifty percent of the deceased person's retirement allowance, if at the time of the deceased person's death, the deceased person was entitled to a retirement allowance of at least seventy-five percent of the deceased person's final compensation and either:

a. The deceased person was retired for service-connected disability; or

b. The person died prior to retirement and the death arose out of and in the course of the person's employment with the city.

For the purposes of this subsection E., if the deceased person died prior to retirement, references to the "deceased person's retirement allowance" or to the deceased's entitlement to a retirement allowance shall mean the retirement allowance that would have been paid had the deceased person retired on the day immediately preceding his or her death.

F. Nothing in this section shall be deemed to entitle any person to any survivorship allowance that was not provided by this chapter as this chapter existed at the time of the deceased person's death, except that the surviving spouse surviving domestic partner benefits described in subsection D. shall be payable retroactive to the date of the deceased person's death.

G. This Section 3.36.1270 shall not apply to tier 2 members. Survivor benefits with respect to a tier 2 member are payable as provided in Section 3.36.1205.

(Prior code § 2903.256; Ords. 23807, 25616, 25936, 26565, 26901, 27712, 28331, 29266.)

Whenever in any other section of this Part 8 it is stated that a surviving spouse or surviving domestic partner shall be entitled to receive and be paid from the retirement fund the monthly survivorship allowance specified in this section, the surviving spouse or surviving domestic partner, whichever is applicable, shall be entitled to receive and shall be paid, subject to other provisions of this chapter including Sections 3.36.1210 and 3.36.1240, the following monthly survivorship allowance:

A. Where Deceased Died or Retired Prior to August 1, 1968. If the person because of whose death the surviving spouse is entitled to a monthly survivorship allowance died or retired from city service prior to August 1, 1968, the amount of monthly survivorship allowance payable to the surviving spouse shall be equal to eighteen percent of the deceased person's final compensation as defined in Section 3.36.020.5; plus five thousand six hundred twenty-five ten- thousandths (0.5625) percent of such final compensation for each full year of service for which the deceased person was entitled to credit under the provisions of this plan in excess of the first two years of service, less the amounts specified in Section 3.36.1330, but in no event shall such monthly survivorship allowance exceed twenty-eight and one hundred twenty-five thousandths (28.125) percent of the final compensation of the deceased person less the amounts specified in Section 3.36.1340.

B. Where Deceased Did Not Die or Retire Prior to August 1, 1968. If the person because of whose death the surviving spouse is entitled to a monthly survivorship allowance did not die or retire prior to August 1, 1968, then except as provided in subsection C. or D. of this section, the amount of monthly survivorship allowance payable to the surviving spouse or surviving domestic partner, whichever is applicable, shall be an amount equal to twenty-four percent of the deceased person's final compensation, as defined in Section 3.36.020.5, plus seventy-five hundredths (0.75) percent of such final compensation for each year of service for which the deceased person was entitled to credit under the provisions of this plan in excess of the first two years of service, less the amounts specified in Section 3.36.1340, but in no event shall such monthly allowance exceed thirty-seven and one- half percent of the final compensation of the deceased person less the amounts specified in Section 3.36.1340.

C. Where Deceased Retired on or after February 4, 2000; or Deceased Died on or after February 4, 2000, but Prior to Receipt of Retirement Allowance. If the person because of whose death the surviving spouse or surviving domestic partner is entitled to a monthly survivorship allowance retired from city service on or after February 4, 2000, or died on or after February 4, 2000, but before receiving any retirement allowance, then:

1. In the case where, at the time of the deceased person's death, the deceased person was entitled to a retirement allowance of up to seventy-five percent of the deceased person's final compensation, the amount of the monthly survivorship allowance payable to the surviving spouse or surviving domestic partner, whichever is applicable, shall be an amount equal to twenty- four percent of the deceased person's final compensation, as defined in Section 3.36.020.5, plus seventy-five hundredths (0.75) percent of such final compensation for each year of service for which the deceased person was entitled to credit under the provisions of this plan in excess of the first two years of service, less the amounts specified in Section 3.36.1340, but in no event shall such monthly allowance exceed thirty-seven and five-tenths percent of the final compensation of the deceased person, less the amounts specified in Section 3.36.1340.

2. In the case where, at the time of the deceased person's death, the deceased person was entitled to a retirement allowance of at least seventy-five percent of the deceased person's final compensation, the amount of the monthly survivorship allowance payable to the surviving spouse or surviving domestic partner, whichever is applicable, shall be an amount equal to fifty percent of the deceased person's retirement allowance, less the amounts specified in Section 3.36.1340, but in no event shall such monthly allowance exceed forty-two and five-tenths percent of the final compensation of the deceased person, less the amounts specified in Section 3.36.1340.

For the purposes of this subsection C., if the deceased person died prior to retirement, the "deceased person's retirement allowance" shall mean the retirement allowance that would have been paid had the deceased person retired on the day immediately preceding his or her death.

D. Where Deceased Was Employed in the Fire Department and Retired on or after July 1, 2008; or Deceased Died on or after July 1, 2008, but Prior to Receipt of Retirement Allowance. If the person because of whose death the surviving spouse or surviving domestic partner is entitled to a monthly survivorship allowance was employed in the fire department and either (a) retired from city service on or after July 1, 2008, or died on or after July 1, 2008, but before receiving any retirement allowance, then:

1. In the case where, at the time of the deceased person's death, the deceased person was entitled to a retirement allowance of up to seventy-five percent of the deceased person's final compensation, the amount of the monthly survivorship allowance payable to the surviving spouse or surviving domestic partner, whichever is applicable, shall be an amount equal to twenty-four percent of the deceased person's final compensation, as defined in Section 3.36.020.5, plus seventy-five hundredths (0.75) percent of such final compensation for each year of service for which the deceased person was entitled to credit under the provisions of this plan in excess of the first two years of service, less the amounts specified in Section 3.36.1340, but in no event shall such monthly allowance exceed thirty-seven and five-tenths percent of the final compensation of the deceased person, less the amounts specified in Section 3.36.1340.

2. In the case where, at the time of the deceased person's death, the deceased person was entitled to a retirement allowance of at least seventy-five percent of the deceased person's final compensation, the amount of the monthly survivorship allowance payable to the surviving spouse or surviving domestic partner, whichever is applicable, shall be an amount equal to fifty percent of the deceased person's retirement allowance, less the amounts specified in Section 3.36.1340, but in no event shall such monthly allowance exceed forty-five percent of the final compensation of the deceased person, less the amounts specified in Section 3.36.1340.

For the purposes of this subsection D., if the deceased person died prior to retirement, the "deceased person's retirement allowance" shall mean the retirement allowance that would have been paid had the deceased person retired on the day immediately preceding his or her death.

E. This Section 3.36.1280 shall not apply to tier 2 members. Survivor benefits with respect to a tier 2 member are payable as provided in Section 3.36.1205.

(Prior code § 2903.257; Ords. 23807, 25936, 26836, 27712, 28331, 29266.)

A. Anything in this chapter to the contrary notwithstanding, from and after the effective date of this section, if the surviving spouse or surviving domestic partner of a deceased member who, at the time of death is not a tier 2 member and is fifty-five years of age and is entitled to credit for twenty years of service, or who is entitled to be credited with thirty years of service regardless of whether such member has attained the age of fifty-five, or who was killed in the line of duty, marries or establishes a domestic partnership, such marriage or domestic partnership shall not deprive the surviving spouse or the surviving domestic partner of the return of contributions, plus interest thereon, and monthly survivorship allowances for which he or she is eligible at the time of the member's death under Sections 3.36.1200, 3.36.1210, 3.36.1230, 3.36.1240, 3.36.1270 and 3.36.1280. Such surviving spouse or surviving domestic partner shall, despite such marriage or domestic partnership, be entitled subject to the provisions of this section to receive and shall be paid from the retirement fund, until such surviving spouse or surviving domestic partner dies, such contributions plus interest there on, and such monthly survivorship allowance to which he or she would be entitled pursuant to Sections 3.36.1200, 3.36.1210, 3.36.1230, 3.36.1240, 3.36.1270 and 3.36.1280, as if he or she had not married or established a domestic partnership. In the event that any surviving spouse or surviving domestic partner of any such member has, at any time before the effective date of this section, remarried or established a domestic partnership and for such reason has been deprived of any such contributions, plus interest thereon, and monthly survivorship allowances because of the provisions of Sections 3.36.1200, 3.36.1210, 3.36.1230, 3.36.1240, 3.36.1270 and 3.36.1280, the return of such contributions, and interest thereon (in the event the full return of such contributions, and interest thereon, has not been made at the time of such remarriage or establishment of a domestic partnership), and payment of the monthly survivorship allowance shall be recommenced as of the effective date of this Section and shall be thereafter paid in accordance with Sections 3.36.1200, 3.36.1210, 3.36.1230, 3.36.1240, 3.36.1270 and 3.36.1280, until such surviving spouse or surviving domestic partner dies, and no longer, but no return of contributions plus interest thereon shall be made, and no survivorship allowance shall be paid, for any period between the date such return of contributions plus interest thereon and monthly survivorship allowance was terminated by such remarriage or establishment of a domestic partnership and the effective date of this section, it being the intention that this section shall operate prospectively and not retroactively.

B. As used in this section:

1. For the purposes of Sections 3.36.1200 and 3.36.1210:

a. "Surviving spouse" means the person to whom the deceased member was married at the time of the deceased member's death and who survives the deceased member's death.

b. "Surviving domestic partner" means the person with whom the deceased member, at the time of the deceased member's death, had established a domestic partnership and who survives the deceased member's death.

2. For the purposes of Section 3.36.1230 and 3.36.1240:

a. "Surviving spouse" means the person to whom the deceased member was married at the time of the deceased member's death and at the time the deceased member was retired for service or disability and who survives such deceased member's death.

b. "Surviving domestic partner" means the person with whom the deceased member, both at the time of the deceased person's death and at the time the deceased member was retired for service or disability, had established a registered domestic partnership and who survives the deceased member's death.

3. For the purposes of Sections 3.36.1270 and 3.36.1280:

a. "Surviving spouse" means whichever of the following is applicable for the purposes of Sections 3.36.1270 and 3.36.1280:

i. The person to whom the deceased member was married at the time of the deceased member's death and who survives the deceased member's death; or

ii. The person to whom the deceased member was married at the time of the deceased member's death and at the time the deceased member was retired for service or disability and who survives the deceased member's death.

b. "Surviving domestic partner" means whichever of the following is applicable for the purposes of Sections 3.36.1270 and 3.36.1280:

i. The person with whom the deceased member, at the time of the deceased member's death, had established a domestic partnership and who survives the deceased person's death; or

ii. The person with whom the deceased member, both at the time of the deceased person's death and at the time the deceased member was retired for service or disability, had established a domestic partnership and who survives the deceased member's death.

4. "Effective date of this section" also means the effective date of any amendment to this section, as may be applicable.

5. "Killed in the line of duty" means that a member dies while a member of this plan and before being retired for service or disability as a direct result of an incident while in the performance of duty in the member's employment with the City. To be covered, the death must not result from a condition unrelated to the specific incident. A member who dies after first being on disability retirement with the City is not considered to have been killed in the line of duty for purposes of this Section.

(Prior code § 2903.257a; Ords. 21686, 23807, 27712, 29266, 30348, 30423.)

A. If the monthly allowance of the surviving spouse of any person who retired or died prior to October 1, 1999, was terminated pursuant to the provisions of Chapter 3.36 of the San José Municipal Code as such Chapter read before the effective date of Ordinance No. 25936, because the surviving spouse remarried, the monthly allowance shall be reinstated effective the later of:

1. October 1, 1999; or

2. The first month after the surviving spouse provides documentation satisfactory to the Secretary to the Board showing the surviving spouse's eligibility for reinstatement, of the allowance.

B. The reinstatement of the monthly allowance shall be prospective only and no payments shall be made for the months during which the allowance was terminated pursuant to the prior provisions of Chapter 3.36. Any cost-of-living adjustments pursuant to Chapter 3.44 of the San José Municipal Code shall also be prospective only and no cost-of-living adjustments shall be made for any time during which the monthly allowance was terminated.

C. The reinstated monthly allowance shall be paid to the eligible surviving spouse for the remainder of the surviving spouse's life.

(Ords. 25936, 27712.)

Subject to and except as otherwise provided by other provisions of this Chapter, if and whenever any survivorship allowance is payable to any surviving child or children pursuant to other provisions of this Part 8, the surviving child, or each of the surviving children if there is more than one surviving child of the deceased member or person, shall be entitled to receive and shall be paid from the retirement fund, until the surviving child marries, establishes a domestic partnership, attains the age of eighteen years or dies, whichever is the earlier time, and no longer, the following monthly survivorship allowance:

A. Death or Retirement Prior to August 1, 1968 - One Eligible Surviving Child. If the person because of whose death the surviving child is entitled to a monthly survivorship allowance died or retired from city service prior to August 1, 1968, and if in addition, there is only one eligible surviving child of the deceased person entitled to receive a monthly survivorship allowance, then in that event while there is only one eligible surviving child of the deceased person entitled to receive a monthly survivorship allowance, the monthly allowance payable to such child shall be:

1. An amount equal to eighteen and seventy-five hundredths (18.75) percent of the deceased person's final compensation less the amounts specified in Section 3.36.1330; or

2. If the death because of which the survivorship allowance is payable arose out of and in the course of the deceased person's employment with the city, or as a result of injury or disease arising out of and in the course of the deceased person's employment with the city while the deceased person was an employee of the city and a member of this plan and before he or she was retired for service or disability, then in that event the amount of the monthly survivorship allowance payable to one surviving child shall be twenty-five percent of the deceased person's final compensation, less the amounts specified in Section 3.36.1330.

3. If the deceased was retired for service-connected disability, an amount equal to eighteen and seventy-five hundredths (18.75) percent of the deceased person's final compensation.

B. Death or retirement not prior to August 1, 1968; one eligible surviving child. If the person because of whose death the surviving child is entitled to a monthly survivorship allowance did not die or retire from city service prior to August 1, 1968, and if, in addition, there is only one eligible surviving child of the deceased person entitled to receive a monthly survivorship allowance, then in that event, while there is only one eligible surviving child of the deceased person entitled to receive a monthly survivorship allowance, the amount of such monthly survivorship allowance payable to such child shall be:

1. An amount equal to twenty-five percent of the deceased person's final compensation, less the amounts specified in Section 3.36.1330; or

2. If the death arose out of and in the course of the deceased person's employment with the city, or as a result of an injury or disease arising out of and in the course of the deceased person's employment with the city, while the deceased person was an employee of the city and a member of this plan, and before he or she was retired for service or disability, an amount equal to twenty-five percent of the deceased person's final compensation.

3. If the deceased was retired for service-connected disability, an amount equal to twenty-five percent of the deceased person's final compensation.

C. Death or retirement prior to August 1, 1968 - two eligible surviving children. If the person because of whose death the surviving children are entitled to a monthly survivorship allowance died or retired from city service prior to August 1, 1968, and if in addition there are only two eligible surviving children of the deceased person entitled to receive a monthly survivorship allowance, then in that event while there are only two such surviving children of the deceased person entitled to receive a monthly survivorship allowance, the allowance payable to each child shall be:

1. If the death did not arise out of and in the course of the deceased person's employment with the city, or as a result of an injury or disease arising out of and in the course of the deceased person's employment with the city, the monthly retirement allowance payable to each of the surviving children shall be an amount equal to one-half of the amount specified in paragraph a below, or one-half of the amount specified in paragraph b below, whichever is the lesser amount:

a. Twenty-eight and one hundred twenty-five thousandths (28.125) percent of the deceased person's final compensation, less the amounts specified in Section 3.36.1330; or

b. That percentage of the deceased person's final compensation which, when added to the percentage of such final compensation which is paid or payable to a surviving spouse of such deceased person, will not exceed a total of fifty-six and twenty-five hundredths (56.25) percent of such final compensation, less the amounts specified in Section 3.36.1330.

2. If the death arose out of and in the course of the deceased person's employment with the city, or as a result of an injury or disease arising out of and in the course of the deceased person's employment with the city, while the deceased person was an employee of the city and a member of this system and before he or she was retired for service or disability, the monthly survivorship allowance payable to each of the two surviving children shall be one-half of the amount specified in paragraph a below, or one- half of the amount specified in paragraph b below, whichever is the lesser amount:

a. Fifty percent of the deceased person's final compensation less the amounts specified in Section 3.36.1330; or

b. That percentage of the deceased person's final compensation which, when added to the percentage of such compensation which is paid or payable to a surviving spouse of such deceased person, will not exceed a total of seventy-five percent of such final compensation, less the amounts specified in Section 3.36.1330.

3. If the deceased was retired for service-connected disability, the monthly retirement allowance payable to each of the surviving children shall be an amount equal to one-half of the amount specified in paragraph a. below, or one-half of the amount specified in paragraph b. below, whichever is the lesser amount:

a. Twenty-eight and one hundred twenty-five thousandths (28.125) percent of the deceased person's final compensation; or

b. That percentage of the deceased person's final compensation which, when added to the percentage of such final compensation which is paid or payable to a surviving spouse of such deceased person, will not exceed a total of fifty-six and twenty-five hundredths (56.25) percent of such final compensation.

D. Death or retirement not prior to August 1, 1968 - two eligible surviving children. If the person because of whose death the surviving children are entitled to a monthly survivorship allowance did not die or retire from city service prior to August 1, 1968, and if in addition there are only two eligible surviving children of the deceased person entitled to receive a monthly survivorship allowance, then in that event, while there are only two eligible surviving children of the deceased person entitled to receive a monthly survivorship allowance, the monthly survivorship allowance payable to each of the two surviving children shall be:

1. If the death did not arise out of and in the course of the deceased person's employment with the city, or as a result of an injury or disease arising out of and in the course of the deceased person's employment with the city, the monthly allowance payable to each of the surviving children shall be an amount equal to one-half of the amount specified in paragraph a below, or one-half of the amount specified in paragraph b below, whichever is the lesser amount:

a. Thirty-seven and five tenths percent of the deceased person's final compensation, less the amounts specified in Section 3.36.1330; or

b. That percentage of the deceased person's final compensation which when added to the percentage of such final compensation which is paid or payable to a surviving spouse or surviving domestic partner of such deceased person, will not exceed a total of seventy-five percent of such final compensation, less the amounts specified in Section 3.36.1330.

2. If the death because of which said survivorship allowances are payable arose out of and in the course of the deceased person's employment with the city, or as a result of an injury or disease arising out of and in the course of the deceased person's employment with the city, while the deceased person was an employee of the city and a member of this plan, and before he or she was retired for service or disability, then in that event the amount of such monthly survivorship allowance payable to each of said two children from and after said death, while entitled to the same, shall be one-half of the amount specified in paragraph a below, or one-half of the amount specified in paragraph b below, whichever is the lesser amount:

a. Fifty percent of the deceased person's final compensation, less the amounts specified in Section 3.36.1330; or

b. That percentage of the deceased person's final compensation which, when added to the percentage of such compensation which is paid or payable to a surviving spouse or surviving domestic partner of such deceased person, will not exceed a total of seventy-five percent of such final compensation, less the amounts specified in Section 3.36.1330.

3. If the deceased person was retired for service-connected disability, the monthly allowance payable to each of the surviving children shall be an amount equal to one-half of the amount specified in paragraph a. below, or one-half of the amount specified in paragraph b. below, whichever is the lesser amount:

a. Thirty-seven and five- tenths percent of the deceased person's final compensation; or

b. That percentage of the deceased person's final compensation which, when added to the percentage of such final compensation which is paid or payable to a surviving spouse or surviving domestic partner of such deceased person, will not exceed a total of seventy-five percent of such final compensation.

E. Death or retirement prior to August 1, 1968; three or more eligible surviving children. If the person because of whose death the surviving children are entitled to a monthly survivorship allowance died or retired from city service prior to August 1, 1968, and if, in addition, there are three or more eligible surviving children of the deceased person entitled to receive a monthly survivorship allowance, the monthly survivorship allowance payable to each child while he is entitled to the same shall be:

1. If the death did not arise out of and in the course of the deceased person's employment with the city, or as a result of an injury or disease arising out of and in the course of the deceased person's employment with the city, the monthly allowance payable to each of the surviving children shall be the amount specified in paragraph a below, or the amount specified in paragraph b below, whichever is the lesser amount:

a. Thirty-seven and five- tenths percent of the deceased person's final compensation less the amounts specified in Section 3.36.1330, divided by the number of children entitled to receive an allowance; or

b. That percentage of the deceased person's final compensation which, when added to the percentage of such final compensation which is paid or is payable to a surviving spouse of such deceased person, will not exceed a total of fifty-six and twenty-five hundredths (56.25) percent of such final compensation less the amounts specified in Section 3.36.1330, divided by the number of children entitled to receive an allowance.

2. If the death because of which said survivorship allowances are payable arose out of and in the course of the deceased person's employment with the city, or as a result of an injury or disease arising out of and in the course of the deceased person's employment with the city, while the deceased person was an employee of the city and a member of this plan, and before he or she was retired for service or disability, then in that event the amount of such monthly survivorship allowance payable to each child while he or she is entitled to same shall be the amount specified in the following paragraph a., or the amount specified in the following paragraph b., whichever is the lesser amount:

a. Seventy-five percent of the deceased person's final compensation, less the amounts specified by Section 3.36.1330, divided by the number of children entitled to receive an allowance; or

b. That percentage of the deceased person's final compensation which, when added to the percentage of such final compensation paid or payable to a surviving spouse of such deceased person, will not exceed a total of seventy-five percent of such final compensation, less the amounts specified in Section 3.36.1330, divided by the number of children entitled to receive an allowance.

3. If the deceased person was retired for service-connected disability, the monthly allowance payable to each of the surviving children shall be the amount specified in paragraph a. below, or the amount specified in paragraph b. below, whichever is the lesser amount:

a. Thirty-seven and five-tenths percent of the deceased person's final compensation, divided by the number of children entitled to receive an allowance; or

b. That percentage of the deceased person's final compensation which, when added to the percentage of such final compensation which is paid or is payable to a surviving spouse of such deceased person, will not exceed a total of fifty-six and twenty-five hundredths (56.25) percent of such final compensation, divided by the number of children entitled to receive an allowance.

F. Death or retirement not prior to August 1, 1968 - three or more eligible surviving children. If the person because of whose death the surviving children are entitled to a monthly survivorship allowance did not die or retire from city service prior to August 1, 1968, and if, in addition, there are three or more eligible surviving children of the deceased person entitled to receive a monthly survivorship allowance, then in that event, while there are three or more such surviving children of the deceased person entitled to receive a monthly survivorship allowance, the monthly survivorship allowance payable to each child shall be:

1. If the death did not arise out of and in the course of the deceased person's employment with the city, or as a result of an injury or disease arising out of and in the course of the deceased person's employment with the city, the monthly allowance payable to each of the surviving children shall be the amount specified in the following paragraph a., or the amount specified in the following paragraph b, whichever is the lesser amount:

a. Fifty percent of the deceased person's final compensation, less the amounts specified in Section 3.36.1330, divided by the number of children entitled to receive an allowance; or

b. That percentage of the deceased person's final compensation which, when added to the percentage of such final compensation which is paid or is payable to a surviving spouse or surviving domestic partner of such deceased person, will not exceed a total of seventy-five percent of such final compensation, less the amounts specified in Section 3.36.1330, divided by the number of children entitled to receive an allowance.

2. If the death because of which said survivorship allowances are payable arose out of and in the course of the deceased person's employment with the city, or as a result of an injury or disease arising out of and in the course of the deceased person's employment with the city, while the deceased person was an employee of the city and a member of this plan and before he or she was retired for service or disability, then in that event the amount of such monthly survivorship allowance payable to each child from and after said death while he or she is entitled to the same shall be the amount specified in the following paragraph a., or the amount specified in the following paragraph b., whichever is the lesser amount:

a. Seventy-five percent of the deceased person's final compensation, less the amounts specified in Section 3.36.1330, divided by the number of children entitled to receive an allowance; or

b. That percentage of the deceased person's final compensation which, when added to the percentage of such final compensation paid or payable to a surviving spouse or surviving domestic partner of such deceased person, will not exceed a total of seventy-five percent of such final compensation, less the amounts specified in Section 3.36.1330, divided by the number of children entitled to receive an allowance.

3. If the deceased person was retired for service-connected disability, the monthly allowance payable to each of the surviving children shall be the amount specified in the following paragraph a., or the amount specified in the following paragraph b., whichever is the lesser amount:

a. Fifty percent of the deceased person's final compensation, divided by the number of children entitled to receive an allowance; or

b. That percentage of the deceased person's final compensation which, when added to the percentage of such final compensation which is paid or is payable to a surviving spouse or surviving domestic partner of such deceased person, will not exceed a total of seventy-five percent of such final compensation, divided by the number of children entitled to receive an allowance.

G. Nothing in this section shall be deemed to entitle any person to any survivorship allowance that was not provided by this chapter as this chapter existed at the time of the deceased person's death.

H. This Section 3.36.1300 shall not apply to tier 2 members. Survivor benefits with respect to a tier 2 member are payable as provided in Section 3.36.1205.

(Prior code § 2903.258; Ords. 23807, 26901, 27712, 29266.)

Except as provided in subsection E. below, if and whenever any survivorship allowance is payable to any eligible surviving child or children pursuant to the provisions of this Part 8 because of the death of a member who, at the time of the member's death, had earned less than twenty years of service credit in this plan while employed by the city, then instead of any other survivorship allowance provided to eligible surviving children under this Part 8, the surviving children's monthly survivorship allowances shall be as follows:

A. To one eligible surviving child, one and twenty-five hundredths (1.25) percent of the deceased person's final compensation for each full year of service earned in this plan while employed by the city, subject to a maximum of twenty-five percent of such final compensation. Pro rata credit shall be given for a portion of a full year of service.

B. To each of two eligible surviving children, one-half of the amount specified in the following paragraph 1. or one-half of the amount specified in the following paragraph 2., whichever is the lesser amount:

1. One and eight hundred seventy-five thousandths (1.875) percent of such deceased person's final compensation for each full year of service earned in this plan while employed by the city; provided, however, that in no event shall the combined monthly allowance payable to the children exceed a maximum of fifty percent of such final compensation. Pro rata credit shall be given for a portion of a full year of service.

2. That percentage of the deceased person's final compensation which, when added to the percentage of such final compensation which is paid or payable to a surviving spouse or surviving domestic partner of such deceased person will not exceed a total of seventy-five percent of such final compensation.

C. To each of three or more eligible surviving children, the amount specified in the following paragraph 1. or the amount specified in the following paragraph 2., whichever is the lesser amount:

1. Two and five-tenths percent of such deceased person's final compensation for each full year of service earned in this plan while employed by the city, divided by the number of children entitled to receive an allowance; provided, however, that in no event shall the combined monthly allowance paid to the children exceed a maximum of seventy-five percent of such final compensation. Pro rata credit shall be given for a portion of a full year.

2. That percentage of the deceased person's final compensation which, when added to the percentage of such final compensation which is paid or payable to a surviving spouse or surviving domestic partner of such deceased person will not exceed a total of seventy-five percent of such final compensation, divided by the number of children entitled to receive an allowance.

D. The benefits payable pursuant to this Section 3.36.1305 shall be payable to each eligible surviving child until that surviving child marries, establishes a domestic partnership, attains the age of eighteen years, or dies, whichever first occurs. Thereafter, no benefits shall be payable to such child.

E. This Section 3.36.1305 shall not apply, and benefits payable to the deceased person's eligible surviving child or surviving children shall be calculated as provided in Section 3.36.1300, in any case where benefits are payable on account of:

1. The death of a person before retirement where the death arises out of and in the course of the person's employment with the city; or

2. The death of a person who has been retired for service-connected disability but who dies before receipt of retirement pay; or

3. The death of a person who has been retired for service-connected disability, who is not reemployed by the city at the time of death and who dies during the disability retirement after receiving any disability retirement allowance.

F. This Section 3.36.1305 shall not apply to tier 2 members. Survivor benefits with respect to a tier 2 member are payable as provided in Section 3.36.1205.

(Ords. 25616; 27712, 29266.)

A. Anything in the preceding provisions of this Part 8 to the contrary notwithstanding, the total amount of survivorship or other allowances payable monthly to a surviving spouse or surviving domestic partner pursuant to the provisions of this part, together with and in addition to the total amount of allowances payable monthly to any and all eligible surviving children pursuant to the provisions of this part, shall not exceed the following maximum amounts:

1. Where deceased died or retired prior to August 1, 1968. If the person because of whose death the surviving spouse or children are entitled to a monthly allowance or allowances died or retired from city service prior to August 1, 1968, the maximum amount of all monthly allowances payable to a surviving spouse and children shall not exceed fifty-six and twenty-five hundredths percent of the deceased person's final compensation, less the amounts specified in Section 3.36.1330; provided and excepting, however, that if the death because of which said allowances are payable arose out of and in the course of the deceased person's employment with the city, or as a result of an injury or disease arising out of and in the course of the deceased person's employment with the city, while the deceased person was an employee of the city and a member of this plan and before he or she was retired for service or disability, then in that event the maximum amount of all of said allowances shall not exceed seventy-five percent of the deceased person's final compensation, less the amounts specified in Section 3.36.1330.

2. Where deceased did not die or retire prior to August 1, 1968. If the person because of whose death the surviving spouse, surviving domestic partner or children are entitled to a monthly allowance or allowances did not die or retire from city service prior to August 1, 1968, the maximum amount of all monthly allowances payable to a surviving spouse or surviving domestic partner and children from and after the death shall not exceed seventy-five percent of the deceased person's final compensation, less the amounts specified in Section 3.36.1330.

3. Where deceased is a tier 2 member. Survivor benefits with respect to a tier 2 member who dies before the receipt of retirement benefits are payable as provided in Section 3.36.1205.

B. In the event that the monthly amount payable to a surviving spouse or surviving domestic partner, together with or in addition to the monthly amounts payable to the eligible surviving children should exceed the applicable maximum, the amounts payable to the children shall be reduced to such amounts as will not, when added to the sum payable to the surviving spouse or surviving domestic partner, exceed the monthly maximum.

(Prior code § 2903.259; Ords. 23807, 27712, 29266, 29879.)

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 in 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.

C. 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 § 2903.260; Ords. 23807, 27712.)

A. A member (including a tier 2 member) of this plan or any person who has retired from this plan 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; and

2. The board is provided with written acknowledgment 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; and

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 3.36.1325 are met, the payment of such survivorship allowance shall be made in accordance with Section 3.36.1320 of this chapter.

(Ords. 22342, 23807, 27712, 29266.)

Notwithstanding anything else in this chapter to the contrary, except to the extent provided in Section 3.36.1030 with respect to the benefits paid to the survivor or beneficiary of tier 2 members, from and after January 1, 1964 the amount of any monthly survivorship or death allowance or benefit payable to any person or to any estate under and by virtue of other provisions of this chapter shall be computed and determined as provided by other applicable sections of this chapter without any deduction being made because of any provision of this section. Nothing herein contained, however, shall be deemed to authorize or require the recomputation or increase of the amount of any survivorship or death allowance or benefit computed and paid prior to January 1, 1964, pursuant to the provisions of this section as it read prior to said date, it being the intent that the present provisions of this section shall operate prospectively as herein provided and not retroactively. No survivorship or death allowances or benefits payable under this system shall be modified because of any workers' compensation benefits which may become payable under the laws of the State of California to any member or to any recipient of any allowances or benefit payable under this system except as provided in Section 3.36.1030.B and this Section 3.36.1330.

(Prior code § 2903.261; Ords. 23807, 27712, 29879.)

A. If a member should retire for service pursuant to the provisions of Part 6 of this retirement plan prior to July 5, 1992, and before attaining the age of fifty-five years, and if said member is entitled to be credited with twenty or more years of service but less than thirty years of service, then each allowance, benefit or other payment to which any person, persons or estate would otherwise be or become entitled to under or by virtue of the preceding sections of this Part 8 shall be reduced to an amount which bears the same relationship to the unreduced allowance, benefit or payment as the partially reduced allowance defined and referred to in Subsection B.2. of Section 3.36.810 bears to the unreduced allowance defined and referred to in Subsection B.1. of Section 3.36.810.

B. If a member, other than a tier 2 member, should retire for service pursuant to the provisions of Part 6 of this retirement plan on or after July 5, 1992, and before attaining the age of fifty-five years, and if said member is entitled to be credited with twenty or more years of service but less than twenty-five years of service, then each allowance, benefit or other payment to which any person, persons or estate would otherwise be or become entitled to under or by virtue of the preceding provisions of this Part 8 shall be reduced to an amount which bears the same relationship to the unreduced allowance, benefit or payment as the partially reduced allowance defined and referred to in Subsection B.2. of Section 3.36.810 bears to the unreduced allowance defined and referred to in Subsection B.1. of Section 3.36.810.

C. If a tier 2 member should retire for service pursuant to the provisions of Part 6 of this retirement plan before attaining the age of fifty-seven years, and if said tier 2 member is entitled to be credited with five or more years of service, then each allowance, benefit or other payment to which any person, persons or estate would otherwise be or become entitled to under or by virtue of the preceding provisions of this Part 8 shall be reduced to an amount which bears the same relationship to the unreduced allowance, benefit or payment as the reduced allowance described in Section 3.36.810.

(Prior code § 2903.263; Ords. 21686, 23807, 24092, 27712, 29266, 29879.)

A. If a person who becomes a member of this plan because of the reason set forth in Section 3.36.760 and has reached fifty-five years of age and does not become a tier 2 member should die before receiving any monthly allowance provided for in Section 3.36.760, such person's surviving spouse, surviving domestic partner, child or children (as these terms are defined in Section 3.36.1200), shall be entitled to:

1. Under the conditions described in subsections C. and D. of Section 3.36.1200, a sum of money equal to all contributions of the deceased person to the retirement fund plus interest thereon as earned by the fund to the deceased person's death, but in no case shall the interest exceed two percent per annum; and

2. Under the conditions described in subsections F. and G. of Section 3.36.1200, and subject to the withholding provided for in subsection H. of Section 3.36.1200, if a lump sum return of contributions and interest is chosen, a monthly allowance, the amount of such allowance to be as specified in subsection C. of this section.

B. If a person who becomes a member of this system because of the reason set forth in Section 3.36.760 and has reached fifty-five years of age should die before receiving the monthly allowance provided for in Section 3.36.760, then under the conditions described in subsection E. of Section 3.36.1200 such deceased person's estate shall be entitled to a return of his contributions together with interest thereon to the date of death, but in no case shall the interest exceed two percent per annum.

C. The amount of a monthly allowance payable under this section shall be:

1. To a surviving spouse or surviving domestic partner for the surviving spouse's or surviving domestic partner's life, one and eight hundred seventy-five thousandths (1.875) percent of such deceased person's final compensation for each full year of service; provided, however, that in no event shall the monthly allowance exceed a maximum of thirty-seven and five tenths percent of such final compensation. Pro rata credit shall be given for a portion of a full year.

2. To one eligible surviving child, one and twenty-five one hundredths (1.25) percent of such deceased person's final compensation for each full year of service; provided, however, that in no event shall the monthly allowance exceed a maximum of twenty-five percent of such final compensation. Pro rata credit shall be given for a portion of a full year.

3. To each of two eligible surviving children, one-half of the amount specified in the following paragraph a or one-half of the amount specified in the following paragraph b, whichever is the lesser amount:

a. One and eight hundred seventy-five thousandths (1.875) percent of such deceased person's final compensation for each full year of service; provided, however, that in no event shall the combined monthly allowance payable to such children exceed a maximum of fifty percent of such final compensation. Pro rata credit shall be given for a portion of a full year.

b. That percentage of the deceased person's final compensation which, when added to the percentage of such final compensation which is paid or payable to a surviving spouse or surviving domestic partner of such deceased person, will not exceed a total of seventy-five percent of such final compensation.

4. To each of three or more eligible surviving children, the amount specified in the following paragraph a or the amount specified in the following paragraph b, whichever is the lesser amount:

a. Two and five tenths percent of such deceased person's final compensation for each full year of service, divided by the number of children entitled to receive an allowance; provided, however, that in no event shall the combined monthly allowance paid to the children exceed a maximum of seventy-five percent of such final compensation. Pro rata credit shall be given for a portion of a full year.

b. That percentage of the deceased person's final compensation which, when added to the percentage of such final compensation which is paid or payable to a surviving spouse or surviving domestic partner of such deceased person, will not exceed a total of seventy-five percent of such final compensation, divided by the number of children entitled to receive an allowance.

D. Each child who, if he or she were under the age of eighteen years, would be a surviving child as defined in Section 3.36.1200 and entitled to payment of contributions and monthly allowance hereunder, shall, if he or she otherwise meets the eligibility requirements of Part 9 of this chapter, it being assumed for purposes of such part that such child would be entitled to a surviving child's monthly survivorship allowance under Part 8 if he or she were under eighteen years of age, be entitled to a child's school allowance for the time set forth in Section 3.36.1440 in the same amount, including return of contributions and monthly survivorship allowance as set forth above for surviving child and children.

(Prior code § 2903.263a; Ords. 19478, 23807, 27712, 29266.)

A. If a person who becomes a member of this plan because of the reason set forth in Section 3.36.760 and has reached fifty-five (55) years of age should die after receiving any such allowance, such person's surviving spouse, surviving domestic partner, and surviving child or children (as these terms are defined in Section 3.36.1230) shall be entitled to a monthly allowance under the conditions described in subsections C. and D. of Section 3.36.1230, the amount of such monthly allowance to be as specified in subsection B. of this section, and the deceased person's estate shall be entitled to a payment of one thousand dollars ($1,000.00) under the conditions described in subsection E. of Section 3.36.1230.

B. The amount of such monthly allowance payable under this section shall be:

1. To a surviving spouse or surviving domestic partner for the surviving spouse's or surviving domestic partner's life, one and eight hundred seventy-five thousandths (1.875) percent of such deceased person's final compensation for each full year of service; provided, however, that in no event shall the monthly allowance exceed a maximum of thirty-seven and five tenths (37.5) percent of such final compensation. Pro rata credit shall be given for a portion of a full year.

2. To one (1) eligible surviving child, one and twenty-five hundredths (1.25) percent of such deceased person's final compensation for each full year of service; provided, however, that in no event shall the monthly allowance exceed a maximum of twenty-five (25) percent of such final compensation. Pro rata credit shall be given for a portion of a full year.

3. To each of two (2) eligible surviving children, one-half ( 1/2) of the amount specified in the following paragraph a, or one-half ( 1/2) of the amount specified in the following paragraph b, whichever is the lesser amount:

a. One and eight hundred seventy-five thousandths (1.875) percent of such deceased person's final compensation for each full year of service; provided, however, that in no event shall the combined monthly allowance payable to said children exceed a maximum of fifty (50) percent of such final compensation. Pro rata credit shall be given for a portion of a full year.

b. That percentage of the deceased person's final compensation which, when added to the percentage of such final compensation which is paid or payable to a surviving spouse or surviving domestic partner of such deceased person will not exceed a total of seventy-five (75) percent of such final compensation;

4. To each of three (3) or more eligible surviving children, the amount specified in the following paragraph a, or the amount specified in the following paragraph b, whichever is the lesser amount:

a. Two and five tenths (2.5) percent of such deceased person's final compensation for each full year of service, divided by the number of children entitled to receive an allowance; provided, however, that in no event shall the combined monthly allowance paid to the children exceed a maximum of seventy-five (75) percent of such final compensation. Pro rata credit shall be given for a portion of a full year.

b. That percentage of the deceased person's final compensation which, when added to the percentage of such final compensation which is paid or payable to a surviving spouse or surviving domestic partner of such deceased person will not exceed a total of seventy-five (75) percent of such final compensation, divided by the number of children entitled to receive an allowance.

C. Each child who, if he or she were under the age of eighteen (18) years, would be a surviving child as defined in Section 3.36.1230 and entitled to payment of a monthly survivorship allowance hereunder shall, if he or she otherwise meets the eligibility requirements of Part 9 of this chapter, it being assumed for purpose of such Part that such child would be entitled to a surviving child's monthly survivorship allowance under Part 8 if he or she were under eighteen (18) years of age, be entitled to a child's school allowance for the time set forth in Section 3.36.1440 in the same amount, including return of contributions and monthly survivorship allowance as set forth above for surviving child and children.

D. Such deceased person shall, for the purpose of the definition of spouse, domestic partner, child or children contained in this section, be deemed to have retired as of the date such deceased person first received a monthly allowance under this chapter.

(Prior code § 2903.263b; Ords. 19123, 23807, 27712.)

Any and all allowances or benefits payable to any person under and by virtue of any of the provisions of this Part 8 may be cancelled and terminated by the retirement board, in its sole discretion, if the recipient thereof should commit treason or be convicted of a felony.

(Prior code § 2903.262; Ords. 23807, 27712.)