2023 New Mexico Statutes › Chapter 10 - Public Officers and Employees › Article 11 - Retirement of Public Officers and Employees Generally › Section 10-11-116 - Election of form of payment of a pension.

A. Except as otherwise provided in Section 10-11-136 NMSA 1978, a member may elect to have pension payments made under any one of the forms of payment provided in Section 10-11-117 NMSA 1978. The election of form of payment and naming of survivor beneficiary shall be made on a form furnished by and filed with the association prior to the date the first pension payment is made. An election of form of payment may not be changed after the date the first pension payment is made. If the member is married, the association shall obtain the consent of the member's spouse to the election of the form of payment and any designation of survivor beneficiary before the election or designation is effective. Except as provided in Subsection C, D or E of this section, a named survivor beneficiary may not be changed after the date the first pension payment is made if form of payment B or C is elected. Except as otherwise provided in Section 10-11-136 NMSA 1978, payment shall be made:
(1) under form of payment A if the member is not married at the time of retirement and if there is not a timely election of another form of payment; or
(2) under form of payment C with the member's spouse as survivor beneficiary if the member is married at the time of retirement and there is not a timely election of another form of payment.
B. The amount of pension under forms of payment B, C and D shall have the same actuarial present value, computed as of the effective date of the pension, as the amount of pension under form of payment A.
C. A retired member who is being paid a pension under form of payment B or C with the member's spouse as the designated survivor beneficiary may:
(1) exercise a one-time irrevocable option to designate another survivor beneficiary and may select either form of payment B or form of payment C; provided that:
(a) the amount of the pension under the form of payment selected shall be recalculated and have the same actuarial present value, computed on the effective date of the designation, as the amount of pension under form of payment A;
(b) the member's spouse provides a notarized, written statement expressing the spouse's consent to relinquish the designation as a survivor beneficiary; and
(c) the retired member shall pay one hundred dollars ($100) to the retirement board to defray the cost of determining the new pension amount;
(2) upon becoming divorced from the named spouse and subject to an order of a court as provided for in Section 10-11-136 NMSA 1978, elect to have future payments made under form of payment A; or
(3) upon becoming divorced from the named spouse, exercise a one-time irrevocable option to designate another survivor beneficiary and may select either form of payment B or form of payment C; provided that:
(a) the amount of the pension under the form of payment selected shall be recalculated and have the same actuarial present value, computed on the effective date of the designation, as the amount of pension under form of payment A;
(b) the designation and the amount of the pension shall be subject to a court order as provided for in Section 10-11-136 NMSA 1978; and
(c) the retired member shall pay one hundred dollars ($100) to the retirement board to defray the cost of determining the new pension amount.
D. A retired member who was previously being paid a pension under form of payment B or C but, because of the death of or divorce from the designated survivor beneficiary or in the event that a supplemental needs trust is the designated survivor beneficiary, the termination of that trust or the death of or divorce from the beneficiary of that trust, is currently receiving a pension under form of payment A may exercise a one-time irrevocable option to designate another survivor beneficiary and may select either form of payment B or form of payment C; provided that:
(1) the amount of the pension under the form of payment selected shall be recalculated and have the same actuarial present value, computed on the effective date of the designation, as the amount of pension under form of payment A;
(2) the designation and the amount of the pension shall be subject to a court order as provided for in Section 10-11-136 NMSA 1978; and
(3) the retired member shall pay one hundred dollars ($100) to the retirement board to defray the cost of determining the new pension amount.
E. A retired member who is being paid a pension under form of payment B or C with a living or operating designated survivor beneficiary other than the retired member's spouse or former spouse or the supplemental needs trust of the retired member's spouse or former spouse may exercise a one-time irrevocable option to deselect the designated beneficiary and elect to:
(1) designate another survivor beneficiary and may select either form of payment B or form of payment C; provided that:
(a) the amount of the pension under the form of payment shall be recalculated and shall have the same actuarial present value, computed as of the effective date of the designation, as the amount of pension under form of payment A; and
(b) the retired member shall pay one hundred dollars ($100) to the retirement board to defray the cost of determining the new pension amount; or
(2) have future payments made under form of payment A.
History:
Laws 1987, ch. 253, § 116; 1991, ch. 149, § 1; 2010, ch. 19, § 1; 2011, ch. 122, § 1; 2021, ch. 115, § 1; 2023, ch. 156, § 2.
ANNOTATIONS
The 2023 amendment,
effective June 16, 2023, allowed a supplemental needs trust to be named as a survivor or refund beneficiary; in Subsection C, Paragraph C(1), after "designate another", deleted "individual as the"; in Paragraph C(3), after "designate another", deleted "individual as the"; in Subsection D, added "or in the event that a supplemental needs trust is the designated survivor beneficiary, the termination of that trust or the death of or divorce from the beneficiary of that trust", and after "designate another", deleted "individual as the"; and in Subsection E, in the introductory clause, after "former spouse", added "or the supplemental needs trust of the retired member's spouse or former spouse".
The 2021 amendment,
effective July 1, 2021, provided additional options to change the survivor beneficiary for retired members who have designated a spouse as a survivor beneficiary; in Subsection C, added Paragraph C(1), added paragraph designation "(2)", and added Paragraph C(3); in Subsection D, after "because of the death of", added "or divorce from"; and in Subsection E, Paragraph E(1), after "survivor beneficiary", added "and may select either form of payment B or form of payment C", and deleted former Subparagraph E(1)(a) and redesignated former Subparagraphs E(1)(b) and E(1)(c) as Subparagraphs E(1)(a) and E(1)(b), respectively.
The 2011 amendment,
effective July 1, 2011, added Subsection D to permit a retired member who, because of the death of a designated survivor pension beneficiary, is being paid under form of payment A to designate another beneficiary upon the death of the initial designated beneficiary, and to be paid under either form of payment B or C, subject to recalculation of the amount of the pension, court-ordered divisions of community property, and payment of the prescribed fee; and in Subsection E, permitted a retired member to deselect a designated living beneficiary and designate another beneficiary upon payment of the prescribed fee.
The 2010 amendment,
effective May 19, 2010, in Subsection A, in the fifth sentence, after "Subsection C", added "or D"; and added Subsection D.
The 1991 amendment,
effective July 1, 1991, in Subsection A, rewrote the first sentence which read "A member may elect to have pension payments made under any one of the forms of payment provided in Section 117 of the Public Employees Retirement Act and name a survivor pension beneficiary", added the fourth sentence, deleted the fifth sentence, which read "A named survivor pension beneficiary shall have an insurable interest in the life of the retired member on the date first payment of the pension is made", and substituted the language beginning "Except as otherwise" including Paragraphs (1) and (2) for "payment shall be made under form of payment A if there is not a timely election of another form of payment" and, in Subsection C, substituted "with the member's spouse as the designated survivor" for "and who named the spouse as survivor" and substituted "Section 10-11-136 NMSA 1978" for "Section 136 of the Public Employees Retirement Act".
An adequate legal remedy precludes a claim for injunctive relief.
— Where plaintiff husband, a retired member of the public employees retirement association, sought declaratory relief under the Declaratory Judgment Act, 44-6-1 to -15 NMSA 1978 (1975) after he executed and delivered a one-time irrevocable option to deselect his wife as his survivor beneficiary and designate his daughter as the new survivor beneficiary, but later claimed that the deselection of wife and designation of daughter was a mistake, and where the public employees retirement board (PERB) declined plaintiff's request to void the action, the district court properly dismissed plaintiff's claim for injunctive relief, because the PERB has authority under 10-11-120 NMSA 1978 to determine in the first instance whether 10-11-116(E) NMSA 1978 permits reversal of a member's mistaken deselection of a survivor beneficiary, because a court may not exercise an equitable remedy to accomplish a goal that a statute has foreclosed.
Gzaskow v. Public Employees Ret. Bd
., 2017-NMCA-064.