Purpose: This emergency rule replaces and extends a previously filed emergency rule (WSR 05-13-080). The department is moving forward with permanent adoption, with a CR-102 filed on September 19, 2005. This amendment implements HB 1329 by allowing LEOFF Plan 1 retirees to select a flexible survivor option for their current spouse even if a property division obligation affects part of their retirement allowance. This rule has also been rewritten for clarity.

     Citation of Existing Rules Affected by this Order: Amending WAC 415-104-202.

     Statutory Authority for Adoption: RCW 41.50.050(5), 41.26.164.

     Under RCW 34.05.350 the agency for good cause finds that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.

     Reasons for this Finding: HB 1329 (chapter 67, Laws of 2005) requires the department to adopt rules by July 1, 2005, to implement the provisions of the bill.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 1, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

     Date Adopted: September 21, 2005.

Sandra J. Matheson

Director

OTS-8360.2

AMENDATORY SECTION(Amending WSR 03-12-014, filed 5/27/03, effective 7/1/03)

WAC 415-104-202   Survivor benefit options -- LEOFF Plan 1.   (1) To whom does this section apply? This section ((only applies to members of the law enforcement officers' and fire fighters' retirement system who first became members of the system prior to October 1, 1977 (LEOFF Plan 1))) applies to you if you are a retiree of LEOFF Plan 1.

     (2) What are flexible survivor benefit options? RCW 41.26.164 allows a retiree to provide a survivor option for a spouse who ((does not otherwise qualify as an eligible surviving spouse)) is not eligible for survivor benefits under RCW 41.26.160 or 41.26.161. The survivor option will provide a lifetime benefit for the spouse after the retiree's death.

     (3) How will ((the retiree's benefit)) my monthly retirement allowance be affected by selecting a flexible survivor option? ((The monthly benefit payment)) Your monthly retirement allowance will be actuarially reduced beginning the first month following the month in which the department receives the completed form.

     (4) What are the flexible survivor option choices?

     (a) Joint and whole allowance option. ((When the retiree dies)) The department will pay you a reduced monthly retirement allowance throughout your lifetime. After your death, the department ((pays the)) will pay your surviving spouse a monthly ((benefit)) allowance equal to the gross monthly retirement allowance ((then payable to the retiree)) you were receiving.

     (b) Joint and one-half allowance option. ((When the retiree dies)) The department will pay you a reduced monthly retirement allowance throughout your lifetime. After your death, the department ((pays the)) will pay your surviving spouse a monthly ((benefit)) allowance equal to one-half of the ((amount of the retiree's)) gross monthly retirement allowance ((then payable to the retiree)) you were receiving.

     (c) Joint and two-thirds allowance option. ((When the retiree dies)) The department will pay you a reduced monthly retirement allowance throughout your lifetime. After your death, the department ((pays the)) will pay your surviving spouse a monthly ((benefit)) allowance equal to two-thirds (66.667%) of the ((retiree's)) gross monthly retirement allowance ((then payable to the retiree)) you were receiving.

     (5) ((How does one)) Do I qualify to add a flexible survivor option? ((A retiree may qualify to)) You may select a flexible survivor option if:

     (a) ((The retiree does not have a spouse who qualifies as an eligible surviving spouse (see subsection (2) of this section);

     (b) The retiree's monthly benefit is not subject to a property settlement agreement from a court decree of dissolution or legal separation; and)) Your current spouse is not eligible for survivor benefits under RCW 41.26.160 or 41.26.161;

     (b) Some portion of your monthly retirement allowance is payable to you, after any reduction pursuant to a property division obligation under RCW 41.50.670;

     (c) ((The retiree has)) You have not previously selected a flexible survivor option; and

     (d) You meet the deadline and application requirements in subsection (6) of this section.

     (6) ((What steps must one take to)) How do I add a flexible survivor option? ((To add a flexible survivor option, the retiree must:

     (a) Make the choice during the one year window, on or after the date of the first anniversary and before the second anniversary of the marriage;

     (b) Provide the department with proof of the birth date of the spouse and a copy of a marriage certificate as proof of the marriage; and

     (c) Properly and in a timely manner complete and file the correct forms with the department.)) You may select a flexible survivor option and name your current spouse as your survivor beneficiary, provided that:

     (a) The selection is made:

     (i) During a one-year window, on or after the date of the first anniversary and before the second anniversary of the marriage; or

     (ii) No later than June 30, 2006, if you cannot comply with (a)(i) of this subsection because you were married prior to July 1, 2005;

     (b) You provide a certified copy of your marriage certificate to the department;

     (c) You provide proof, satisfactory to the department, of your current spouse's birth date; and

     (d) You file the properly completed forms with the department in a timely manner.

     (7) May I remove the flexible survivor option in the future? Your choice of a flexible survivor option is irrevocable with the following exceptions:

     (a) Your spouse dies before you; or

     (b) You and your spouse divorce.

     See subsection (8) of this section.

     (8) What happens if ((the survivor)) my spouse dies before ((the retiree)) me, or if we divorce? If ((the)) your spouse dies before ((the retiree)) you, or if you divorce, ((the retiree's)) your monthly retirement allowance will increase((s)), effective the first day of the following month((, to)). Your increased monthly allowance will be the amount ((that the retiree)) you would have received had ((the retiree)) you not chosen a flexible survivor option plus any cost-of-living adjustments (COLA) ((the retiree)) you received prior to ((the)) your spouse's death.

     (((8))) (9) What happens to ((the)) my eligible surviving children's share if ((the retiree)) I select((s)) a flexible survivor option? There is no impact to the benefit provided under RCW 41.26.160 or 41.26.161 to surviving children if ((the retiree selects)) you select a flexible survivor option.

     (((9))) (10) Actuarial information. See chapter 415-02 WAC starting with WAC 415-02-300 for the tables, schedules, and factors the department uses for calculating retirement allowances.

     Terms used in this section:

     (a) Child or children - RCW 41.26.030(7).

     (b) Eligible surviving child - RCW 41.26.160 and 41.26.161.

     (c) Eligible surviving spouse - RCW 41.26.161 and 41.26.162.

     (d) Surviving spouse - RCW 41.26.030(6).

[Statutory Authority: RCW 41.50.050(5), 41.26.162, 41.26.164, chapter 41.45 RCW. 03-12-014, § 415-104-202, filed 5/27/03, effective 7/1/03.]

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