Conflict Betwen State and Federal Agency Definition of Child as Beneficiary of Benefits
Full Question:
In the State of Ohio, in 330.1,2 of the Social Security Handbook, states that a minor child inheritance rights as the workers equitably adopted child. Shouldn't Ohio Public Employees Retirement System (OPERS) also abide by the this law?
02/26/2009 |
Category: Employment ยป Benefits |
State: Ohio |
#15368
Answer:
The definitions of qualified beneficiaries vary by the govening entity. Social Security Administration and its benefits are governed by federal laws and regulations, whereas Ohio's PERS is governed by laws and regulations. Generally, the Supremacy Clause in the U.S. Constitution allows states to enact laws that don't conflict with federal laws. So for example, a state may apply a different definition of a child than a federal law, but if it prevents the federal law from being enforced, there may be a challenge under the Supremacy Clause. If a state retirement agency rule defined a child differently from federal rules in a way that prevented the federal law from being carried out, such as denial of Social Security benefits due to be collected, it might be unenforceable under the Supremacy Clause.
The following are OH statutes:
§ 145.58. (A) As used in this section, "ineligible individual" means all
of the....
(A) As used in this section, "ineligible individual" means all of the
following:
(1) A former member receiving benefits pursuant to section 145.32,
145.33, 145.33] [145.33.1], 145.34, or 145.46 of the Revised Code for
whom eligibility is established more than five years after June 13,
1981, and who, at the time of establishing eligibility, has accrued less
than ten years' service credit, exclusive of credit obtained pursuant to
section 145.297 [145.29.7] or 145.298 [145.29.8] of the Revised Code,
credit obtained after January 29, 1981, pursuant to section 145.293
[145.29.3] or 145.301 [145.30.1] of the Revised Code, and credit obtained
after May 4, 1992, pursuant to section 145.28 of the Revised Code;
(2) The spouse of the former member;
(3) The beneficiary of the former member receiving benefits pursuant
to section 145.46 of the Revised Code.
(B) The public employees retirement board may enter into agreements
with insurance companies, health insuring corporations, or government
agencies authorized to do business in the state for issuance of a policy
or contract of health, medical, hospital, or surgical benefits, or any
combination thereof, for those individuals receiving age and service
retirement or a disability or survivor benefit subscribing to the plan,
or for PERS retirants employed under section 145.38 of the Revised Code,
for coverage of benefits in accordance with division (D)(2) of section
145.38 of the Revised Code. Notwithstanding any other provision of this
chapter, the policy or contract may also include coverage for any
eligible individual's spouse and dependent children and for any of the
individual's sponsored dependents as the board determines appropriate. If
all or any portion of the policy or contract premium is to be paid by any
individual receiving age and service retirement or a disability or
survivor benefit, the individual shall, by written authorization,
instruct the board to deduct the premium agreed to be paid by the
individual to the company corporation, or agency.
The board may contract for coverage on the basis of part or all of the
cost of the coverage to be paid from appropriate funds of the public
employees retirement system. The cost paid from the funds of the system
shall be included in the employer's contribution rate provided by
sections 145.48 and 145.51 of the Revised Code. The board may by rule
provide coverage to ineligible individuals if the coverage is provided at
no cost to the retirement system. The board shall not pay or reimburse
the cost for coverage under this section or section 145.325 [145.32.5] of
the Revised Code for any ineligible individual.
The board may provide for self-insurance of risk or level of risk as
set forth in the contract with the companies, corporations, or agencies,
and may provide through the self-insurance method specific benefits as
authorized by rules of the board.
(C) The board shall, beginning the month following receipt of
satisfactory evidence of the payment for coverage, pay monthly to each
recipient of service retirement, or a disability or survivor benefit
under the public employees retirement system who is eligible for medical
insurance coverage under part B of Title XVIII of "The Social Security
Act," 79 Stat. 301 (1965), 42
U.S.C.A. 1395j, as amended, an amount equal to the basic premium for
such coverage, except that the board shall make no such payment to any
ineligible individual.
(D) The board shall establish by rule requirements for the coordination
of any coverage, payment, or benefit provided under this section or
section 145.325 [145.32.5] of the Revised Code with any similar
coverage, payment, or benefit made available to the same individual by
the Ohio police and fire pension fund, state teachers retirement system,
school employees retirement system, or state highway patrol retirement
system.
(E) The board shall make all other necessary rules pursuant to the
purpose and intent of this section.
§ 145.46. (A) A retirement allowance calculated under section 145.33,
145.331....
(A) A retirement allowance calculated under section 145.33, 145.331
[145.33.1], or 145.34 of the Revised Code shall be paid as provided in
this section. If the member is eligible to elect a plan of payment
under this section, the election shall be made on a form provided by
the public employees retirement board. A plan of payment elected under
this section shall be effective only if approved by the board, which
shall approve it only if it is certified by an actuary engaged by the
board to be the actuarial equivalent of the retirement allowance
calculated under section 145.33, 145.331 [145.33.1], or 145.34 of the
Revised Code.
(B)(1)(a) Except as provided in divisions (B)(1)(b) and (c) of this
section, a member who retires under section 145.32, 145.331 [145.33.1],
or 145.34 of the Revised Code shall receive a retirement allowance under
"plan A," which shall consist of the actuarial equivalent of the member's
retirement allowance determined under section 145.33, 145.331
[145.33.1], or 145.34 of the Revised Code in a lesser amount payable for
life and one-half of such allowance continuing after death to the
member's surviving spouse for the life of the spouse.
(b) A member may receive a retirement allowance under a plan of
payment other than "plan A" if either of the following is the case:
(i) The member is not married or either the member's spouse consents
in writing to the member's election of a plan of payment other than
"plan A" or the board waives the requirement that the spouse consent;
(ii) A plan of payment providing for payment in a specified portion of
the allowance continuing after the member's death to a former spouse is
required by a court order issued under section 3105.171 [3105.17.1] or
3105.65 of the Revised Code or the laws of another state regarding
division of marital property prior to the effective date of the member's
retirement.
(c) If a member is subject to division (B)(1)(b)(ii) of this section
and the board has received a copy of the order described in that
division, the board shall accept the member's election of a plan of
payment under this section only if the member complies with both of the
following:
(i) The member elects a plan of payment that is in accordance with the
order described in division (B)(1)(b)(ii) of this section.
(ii) If the member is married, the member elects "plan F" and
designates the member's current spouse as a beneficiary under that plan
unless that spouse consents in writing to not being designated a
beneficiary under any plan of payment or the board waives the requirement
that the current spouse consent.
(2) An application for retirement shall include an explanation of all
of the following:
(a) That, ii the member is married, unless the spouse consents to
another plan of payment or there is a court order dividing marital
property issued under section 3105.171 [3105.17.1] or 3105.65 of the
Revised Code or the laws of another state regarding the division of
marital property that provides for payment in a specified amount, the
member's retirement allowance will be paid under "plan A," which consists
of the actuarial equivalent of the member's retirement allowance in a
lesser amount payable for life and one-half of the allowance continuing
after death to the surviving spouse for the life of the spouse;
(b) A description of the alternative plans of payment, including all
plans described in divisions (B)(2) and (3) of this section, available
with the consent of the spouse;
(c) That the spouse may consent to another plan of payment and the
procedure for giving consent;
(d) That consent is irrevocable once notice of consent is filed with
the board.
Consent shall be valid only if it is signed, in writing, and witnessed
by a notary public. The board may waive the requirement of consent if
the spouse is incapacitated or cannot be located or for any other
reason specified by the board. Consent or waiver is effective only
with regard to the spouse who is the subject of the consent or waiver.
(3) A member eligible to elect to receive the member's retirement
allowance under a plan of payment other than "plan A" shall receive the
member's retirement allowance under the plan described in division (B)(4)
of this section or one of the following plans:
(a) "Plan B," which shall consist of an allowance determined under
section 145.33, 145.331 [145.33.1], or 145.34 of the Revised Code;
(b) "Plan C," which shall consist of the actuarial equivalent of the
member's retirement allowance determined under section 145.33, 145.331
[145.33.1], or 145.34 of the Revised Code in a lesser amount payable for
life and one-half or some other portion of the allowance continuing after
death to the member's sole surviving beneficiary designated at the time
of the member's retirement, provided that the amount payable to the
beneficiary does not exceed the amount payable to the member;
(c) "Plan D," which shall consist of the actuarial equivalent of the
member's retirement allowance determined under section 145.33, 145.331
[145.33.1], or 145.34 of the Revised Code in a lesser amount payable for
life and continuing after death to a surviving beneficiary designated at
the time of the member's retirement;
(d) "Plan E," which shall consist of the actuarial equivalent of the
member's retirement allowance determined under section 145.33, 145.331
[145.33.1], or 145.34 of the Revised Code in a lesser amount payable for
a certain period from the member's retirement date as elected by the
member and approved by the retirement board, and on the member's death
before the expiration of that certain period the member's lesser
retirement allowance payable for the remainder of that period to the
member's surviving designated beneficiary nominated by written
designation filed with the retirement board.
Should the nominated beneficiary designated in writing die prior to the
expiration of the guarantee period, then for the purpose of completing
payment for the remainder of the guarantee period, the present value of
such payments shall be paid to the estate of the beneficiary last
receiving.
(e) "Plan F," which shall consist of the actuarial equivalent of the
member's retirement allowance determined under section 145.33, 145.331
[145.33.1], or 145.34 of the Revised Code in a lesser amount payable to
the retirant for life and some portion of the lesser amount continuing
after death to two, three, or four surviving beneficiaries designated at
the time of the member's retirement. The portion of the lesser allowance
that continues after the member's death shall be allocated among the
beneficiaries at the time of the member's retirement. If the member
elects this plan as required by a court order issued under section
3105.171 [3105.17.1] or 3105.65 of the Revised Code or the laws of
another state regarding the division of marital property and compliance
with the court order requires the allocation of a portion less than ten
per cent to any beneficiary, the member shall allocate a portion less than
ten per cent to that beneficiary in accordance with that order. In all
other circumstances, no portion allocated under this plan of payment
shall be less than ten per cent. The total of the portions allocated
shall not exceed one hundred per cent of the member's lesser allowance.
(4)(a) Beginning on a date selected by the retirement board, which
shall be not later than July 1, 2004, a member may elect to receive a
retirement allowance under a plan of payment consisting of both a lump
sum in an amount the member designates that constitutes a portion of the
member's retirement allowance under a plan described in division (B) of
this section and the remainder as a monthly allowance under that plan.
The total amount paid as a lump sum and a monthly benefit shall be the
actuarial equivalent of the amount that would have been paid had the
lump sum not been selected.
(b) The lump sum designated by a member shall be not less than six
times and not more than thirty-six times the monthly amount that would
be payable to the member under the plan of payment elected under
division (B)(4)(a) of this section had the lump sum not been elected
and shall not result in a monthly allowance that is less than fifty
per cent of that monthly amount.
(5) An election under division (B)(3) or (4) of this section shall be
made at the time the member makes application for retirement.
(6) A member eligible to elect to receive the member's retirement
allowance under a plan of payment other than "plan A" because the
member is unmarried who fails to make an election on retirement shall
receive the member's retirement allowance under "plan B."
(C) If the retirement allowances, as a single life annuity or payment
plan as provided in this section, due and paid are in a total amount less
than (1) the accumulated contributions, and (2) other deposits made by
the member as provided by this chapter, standing to the credit of the
member at the time of retirement, then the difference between the total
amount of the allowances paid and the accumulated contributions and other
deposits shall be paid to the beneficiary provided under division (D) of
section 145.43 of the Revised Code.
(D)(1) The death of a spouse or any designated beneficiary following
retirement shall cancel the portion of the plan of payment providing
continuing lifetime benefits to the deceased spouse or deceased
designated beneficiary. The retirant shall receive the actuarial
equivalent of the retirant's single lifetime benefit, as determined by
the board, based on the number of remaining beneficiaries, with no change
in the amount payable to any remaining beneficiary. The change shall be
effective the month following receipt by the board of notice of the
death.
(2) On divorce, annulment, or marriage dissolution, a retirant
receiving a retirement allowance under a plan that provides for
continuation of all or part of the allowance after death for the lifetime
of the retirant's surviving spouse may, with the written consent of the
spouse or pursuant to an order of the court with jurisdiction over the
termination of the marriage, elect to cancel the portion of the plan
providing continuing lifetime benefits to that spouse. The retirant shall
receive the actuarial equivalent of the retirant's single lifetime
benefit as determined by the retirement board based on the number of
remaining beneficiaries, with no change in amount payable to any
remaining beneficiary. The election shall be made on a form provided by
the board and shall be effective the month following its receipt by the
board.
(E)(1) Following a marriage or remarriage, both of the following
apply:
(a) A retirant who is receiving the retirant's retirement allowance
under "plan B" may elect a new plan of payment under division (B)(1),
(3)(b), or (3)(c) of this section based on the actuarial equivalent of
the retirant's single lifetime benefit as determined by the board.
(b) A retirant who is receiving a retirement allowance pursuant to a
plan of payment providing for payment to a former spouse pursuant to a
court order described in division (B)(1)(b)(ii) of this section may
elect a new plan of payment under "plan F" based on the actuarial
equivalent of the retirant's single lifetime retirement allowance as
determined by the board if the new plan of payment elected does not
reduce the payment to the former spouse.
(2) If the marriage or remarriage occurs on or after the effective
date of this amendment, the election must be made not later than one
year after the date of the marriage or remarriage.
The plan elected under this division shall become effective on the
date of receipt by the board of an application on a form approved by
the board, but any change in the amount of the retirement allowance
shall commence on the first day of the month following the effective
date of the plan.
(F) Any person who, prior to July 24, 1990, selected an optional plan
of payment at retirement that provided for a return to the single life
benefit after the designated beneficiary's death shall have the
retirant's benefit adjusted to the optional plan equivalent without such
provision.
(G) A retirant's receipt of the first month's retirement allowance
constitutes the retirant's final acceptance of the plan of payment and
may be changed only as provided in this chapter.
