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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. 6543 October 11, 1988 RETIREMENT AND RETIREMENT SYSTEMS: State Police Retirement System--right of ex-spouse of retiree to continue to collect portion of retirement benefit of retiree upon death of retiree An ex-spouse awarded a portion of the retirement benefit of a retiree under the State Police Retirement Act of 1986 in a judgment of divorce or court order is not entitled to any survivor benefits in the event of the death of the retired former spouse. Honorable Mitch Irwin State Senator State Capitol Lansing, Michigan 48909 You have requested my opinion whether an ex-spouse is entitled to survivor benefits in the event of the death of a retired former spouse under the State Police Retirement Act of 1986. Your letter of request indicates that the ex-spouse of a retiree of that system was awarded a portion of the retirement benefit of the retiree by a judgment of divorce or a court order. You have expressed concern over the disparity between the protection offered to an ex-spouse under the Employee Retirement Income Security Act (ERISA), 29 USC 1001 et seq, and that afforded to an ex-spouse under State Police Retirement Act of 1986 (Act), MCL 38.1601 et seq; MSA 5.4002(1) et seq. Initially, it is noted that government retirement plans, including the State Police Retirement Act of 1986, are excluded from ERISA coverage. 29 USC 1003(b)(1) and 1002(32); Accident Fund v Baerwaldt, 545 F Supp 1030, 1031 (WD Mich, 1982). Because of this, the coverage provided under ERISA has no application to the coverage provided by the Act, which must be determined from its language. MCL 38.1624(2); MSA 5.4002(24)(2), provides survivor benefits to a spouse upon the death of a retiree: "If a retirant receiving a retirement allowance under subsection (1) dies, the retirement allowance shall continue to be paid to the surviving spouse of the retirant for the rest of the spouse's life. If there is not a surviving spouse or upon the spouse's death, then the retirement allowance shall be paid to the children under the age of 18 of the retirant, share and share alike. If the surviving spouse dies and there are not eligible children, there shall be paid to the retirant's estate or his or her legal representative any residual accumulated contributions and interest made by the retirant into the fund." MCL 38.1604(7); MSA 5.4002(4)(7), defines "surviving spouse" as "the spouse at the time of death of the member or retirant." Thus, an ex-spouse is not entitled to survivor benefits under the Act. The provisions relative to ex-spouses are contained in MCL 38.1643; MSA 5.4002(43), which provides: "(1) Except as provided in subsection (2), a retirement allowance, either before or after its order of distribution, shall not be held, seized, taken, detained, or levied on by virtue of any legal process issued out of any court against the beneficiary, but shall be paid directly to the beneficiary of the allowance. "(2) The right of a member or retirant to a retirement allowance, ... under this act shall be subject to award by a court pursuant to section 18 of chapter 84 of the Revised Statutes of 1846, being section 552.18 of the Michigan Compiled Laws,.... "(3) If an award or order described in subsection (2) requires the retirement system to withhold payment of a retirement allowance, ... for the purpose of meeting the person's obligations to a spouse, former spouse, or child, as provided in subsection (2), the withholding or payment provisions of the award or order shall be effective only against such amounts as they become payable to the person receiving a retirement allowance...." (Emphasis added.) This section creates an exception to the general prohibition against alienation of retirement benefits for judgments in divorce and child support cases. However, even in these exceptional cases, a court order "shall be effective only against such amounts as they become payable to the person receiving a retirement allowance." (Emphasis added.) MCL 38.1643(3); MSA 5.4002(43)(3). Obviously, when a retirant dies, no further payments are payable to him or her. In such an event, the survivorship provisions of MCL 38.1624(2); MSA 5.4002(24)(2), would apply. An ex-spouse awarded a portion of the retirement benefit of a retiree under the State Police Retirement Act of 1986 in a judgment of divorce or court order is not entitled to any survivor benefits in the event of the death of the retired former spouse. Frank J. Kelley Attorney General
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