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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6062 April 27, 1982 RETIREMENT SYSTEM: Public school employees--termination of surviving spouse benefits upon death and not remarriage 1980 PA 300, which provides for termination of surviving spouse benefits upon death only for surviving spouses of persons who were members of the public school retirement system on or after October 30, 1980, is lawful and does not contravene any constitutional provision, federal or state. Honorable Jack E. Kirksey House of Representatives State Capitol Lansing, Michigan 48909 You have requested my opinion on the effect of the Public School Employees' Retirement Act, 1980 PA 300; MCLA 38.1301 et seq; MSA 15.893(111) et seq, on the termination of surviving spouse benefits upon remarriage. 1980 PA 300, supra, is a repeal and recodification of the previous law creating and governing the retirement system for Michigan public school employees. (1) 1980 PA 300, supra, Sec. 89, provides: '(1) If a member who continues as a public school employee on or after the date the member has either 15 years of credited service in effect or the date of the member's sixtieth birthday and has 10 years of credited service in effect dies before the effective date of his or her retirement and leaves a surviving spouse to whom the deceased member was married at time of death, the surviving spouse shall receive a retirement allowance computed in the same manner as if the deceased member had retired effective the day preceding the date of the deceased member's death, elected the option set forth in subsection (3), and nominated the surviving spouse as joint retirement allowance beneficiary. The surviving spouse's retirement allowance shall terminate upon death. ' (3) A member who continues as a public school employee on or after the date the member has either 15 years of credited service in effect or the date of the member's sixtieth birthday and has 10 years of credited service in effect may elect the option provided in section 85(1)(b) and nominate a joint retirement allowance beneficiary as specified in section 85(2). The election shall be in writing and filed with the retirement board in a manner and form prescribed by the retirement board. The election shall be void upon the member's retirement, termination of employment except as provided in section 82(2), divorce, the retirement allowance beneficiary's death, or upon the retirement allowance beneficiary no longer being dependent upon the member before the member's death. If a member, who has an option election under section 85(1)(b) in effect, dies before the effective date of his or her retirement, the member's joint retirement allowance beneficiary, so long as the beneficiary continues to be so dependent, shall receive the same retirement allowance as the joint retirement allowance beneficiary would have been entitled to receive under the option provided in section 85(1)(b) if the member had been regularly retired pursuant to section 81 or 82 the day preceding the date of the member's death, even though the member may not have acquired entitlement to service retirement. The surviving spouse of the deceased member shall be presumed to be 50% dependent on the deceased member for his or her own financial support. The surviving spouse's retirement allowance shall terminate upon death.' [Emphasis added.] In contrast, the previous law, 1945 PA 136, terminated the surviving spouse's retirement allowance upon death or remarriage. (2) The Michigan Public School Employees' Retirement System (MPSERS) applies 1980 PA 300, supra, to create two general classes of surviving spouse beneficiaries under the Public School Employees' Retirement Act, supra: (1) those whose member spouses retired or left active school employment before October 31, 1980 and (2) those who were in public school service, i.e., who were 'members,' on or after that date. The MPSERS will terminate spousal retirement benefits upon remarriage for those in the first class, and will not for those in the second. You inquire whether that interpretation of 1980 PA 300, supra, is correct. 1980 PA 300, Sec. 89, supra, speaks only of 'member[s]' and the 'surviving spouse of the deceased member.' 1980 PA 300, supra, Sec. 5(1), defines 'member' to mean a public school employee who, among other exclusions, is not a retirant of the Public School Employees' Retirement System. The term 'member' also does not include 'deferred member' which 'means a member who has ceased to be a public school employee and has satisfied the requirements . . . for a deferred vested service retirement allowance.' 1980 PA 300, supra, Sec. 4(3). The interpretation by the MPSERS that the removal of termination of spousal benefits upon remarriage applies only prospectively is consistent with Hughes v Judges' Retirement Board, 407 Mich 75, 89-90; 282 NW2d 160, 166 (1979), and OAG, 1981-82, No 6010, p 475 (November 24, 1981). In particular, the Supreme Court stated: 'The express legislative mandate that '[u]pon a member's retirement [the member] shall be paid a straight life annuity, and that a judge's membership terminates 'whenever he becomes a beneficiary', means that only those judges who were members of the retirement system on the effective date of 1974 PA 337, Sec. 14, may claim its benefits. 'It follows then that as retirant-beneficiaries, plaintiffs are not members of the retirement system and were not on the effective date of the 1974 amendment to Sec. 14. They do not have the requisite pensionable status to entitle them to its benefits. 'Consequently, we conclude that in adopting 1974 PA 337, Sec. 14, and thereby increasing judicial retirement benefits, the Legislature did not confer the newly increased benefits upon persons who were already beneficiaries under the Judges' Retirement System.' Since 1980 PA 300, Sec. 89, supra, only speaks of members and the 'surviving spouse of the deceased member,' it, thus, speaks only to public school employees in service on or after October 31, 1980. Moreover, it is not possible to read 1980 PA 300, Sec. 89, supra, as evincing any intent on the part of the Legislature to afford similar treatment to spouses of retirants under 1945 PA 136, supra. The Legislature has made it abundantly clear in 1980 PA 300, supra, Sec. 106, that all rights existing and acquired under 1945 PA 136 are saved and there is nothing in this section to even suggest that the Legislature is extending the benefits of 1980 PA 300, supra, to retirants and their spouses existing and acquired under 1945 PA 136, supra. You ask whether this 'discrimination' is legal. A similar question of law concerning the Public School Employees' Retirement System was considered in OAG, 1979-1980, No 5586, p 448 (October 19, 1979). Citing Hughes v Judges' Retirement Board, supra, the opinion concluded that legislation authorizing new military service credits for active members of the retirement system, but not for retirees, did not violate the Equal Protection Clauses of the Michigan and United States Constitutions. The reasoning and result of Hughes, supra, and of OAG, 1979-1980, No 5586, control here. It is my opinion, therefore, that the removal of the loss of surviving spouse benefits upon remarriage only where the applicable member was in public school service on or after the effective date of 1980 PA 300, supra, is legal. Frank J. Kelley Attorney General (1)
(2)
For example, that termination rule was contained in the now repealed 1945 PA 136, Secs. 20(c) and 20(b), for 'Chapter 1' members of the retirement system.
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