§ 65C — Surviving spouses of judges

Section 65C. A chief justice, justice, associate justice, judge, associate judge, or special justice, hereinafter in this section called judge, who is retired or who resigns and who is entitled to a pension or retirement allowance for life under the provisions of section sixty-five A, sixty-five B sixty-five D, sixty-five F, or sixty-five I may elect to receive, in lieu thereof, a pension or retirement allowance for life at a lesser annual rate with provision that upon his death, leaving as a survivor a surviving spouse who was his spouse at the time of his retirement or resignation, two-thirds of such pension or retirement allowance for life at a lesser annual rate shall be paid to such surviving spouse; provided, however, that if such surviving spouse dies on or after the date such lesser retirement allowance becomes effective and before the death of such member, such member thereafter shall be paid a full retirement allowance. Such full retirement allowance shall be determined by multiplying the amount of the lesser retirement allowance at the time of the death of such surviving spouse by a fraction the numerator of which is the yearly amount of the full retirement allowance which such member would have received at the time his retirement allowance became effective, and the denominator of which is the yearly amount of the lesser retirement allowance which such member received at the time his retirement allowance first became effective. The yearly amount of such lesser retirement allowance shall be determined so that the value, on the date such allowance becomes effective, of the prospective payments to such member and to such surviving spouse shall be the actuarial equivalent of the value on such date of the full retirement allowance; provided, however, that the yearly amount of such lesser retirement allowance shall be decreased to reflect the costs to the system of providing full retirement allowances in accordance with the first sentence of this paragraph. Such election shall be in writing on a prescribed form and filed with the appropriate retiring authority at the time of retirement or resignation or within thirty days thereafter. The computation of said actuarial equivalent shall be subject to supervision and verification in accordance with the provisions of section twenty-one by the actuary appointed by the public employee retirement administration commission.If a judge, who would be entitled, upon resigning, to a pension or retirement allowance for life under sections sixty-five A, sixty-five B or sixty-five D, dies before resigning, the judge's surviving spouse shall receive a pension or retirement allowance for life of two-thirds of such pension or retirement allowance for life at a lesser annual rate to which such judge would have been entitled had he, as of the date of death, resigned and had such pension or retirement allowance for life at a lesser annual rate been computed under the first paragraph.If a judge forty-five years of age or over but under the age of seventy who would be entitled, upon resigning, to a pension or retirement allowance for life under section sixty-five A or sixty-five D except for not having attained age seventy, or if a judge forty-five years of age or over but under the age of sixty-five, who would be entitled upon resigning to a pension or retirement allowance under said section sixty-five A or sixty-five D, except for not having attained age sixty-five, or if a judge fifty-five years of age or over but under age sixty-five, who would be entitled upon resigning to a pension or retirement allowance for life under section sixty-five B, except for not having attained age sixty-five dies before resigning, the judge's surviving spouse shall receive a pension or retirement allowance for life computed as provided in the second paragraph except that, in making such computation the proportion of the annual rate of salary payable to a judge under section sixty-five A or sixty-five D or the proportion of the average yearly earning for the required years of service payable to a judge under section sixty-five B shall be reduced by one per cent for each year or part thereof by which the date of death precedes the attainment of the age at which the judge would have received, upon resigning, his pension or retirement allowance for life under section sixty-five A, sixty-five B or sixty-five D, respectively.Pensions under this section payable to surviving spouses shall be paid from the same source and in the same manner as the salaries of like judicial officers of the court from which the judge was retired or resigned or of which he was a judge at the time of his death are paid. Retirement allowances under this section payable to surviving spouses of judges subject to the requirements of paragraphs (a) and (b) of section sixty-five D shall be paid pursuant to the provisions of paragraph (h) of section sixty-five D.The provisions of the second and third paragraph shall not apply unless such surviving spouse and such deceased judge were living together at the time of such judge's death or, if living apart, they were living apart, in the opinion of the appropriate retiring authority, for justifiable cause other than desertion or moral turpitude on the part of such surviving spouse. Payments under said second and third paragraphs shall terminate upon the remarriage of such surviving spouse.In determining whether a judge who was appointed prior to January second, nineteen hundred and seventy-five, has served in any office or offices at least ten years continuously and would be for the purposes of the second or third paragraphs of this section, entitled to a pension for life under section sixty-five A or sixty-five B the period, not exceeding one year, of his wartime service as defined in section one of chapter thirty-one, whether before or after his appointment as a judge, shall be added to and deemed continuous with the period of his service in any such office or offices.In determining whether a judge who was appointed prior to January second, nineteen hundred and seventy-five, has served in any such office or offices at least ten years continuously and would be, for the purposes of the second or third paragraph of this section, entitled to a pension for life under section sixty-five A or sixty-five B, each three years spent by him in the service of the commonwealth or of any county, city or town thereof shall count as one year of creditable service and each such year so credited, but in no event to exceed more than four years of such creditable service, shall be added to and deemed continuous with the period of his service in any such office or offices.If a judge subject to the provisions of paragraphs (a) and (b) of section sixty-five D dies before resigning or before retiring and if the surviving spouse is not entitled to a pension or retirement allowance under the provisions of this section, or if a judge subject to the provisions of paragraphs (a) and (b) of said section sixty-five D dies before resigning or before retiring and if there is no surviving spouse who is eligible to receive a pension or retirement allowance under the provisions of this section, all funds previously withheld and deducted under the provisions of paragraph (b) of said section sixty-five D plus interest shall be returned to the estate of the deceased.