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LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 27876
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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My dad who is 80, just recd a letter saying that the California

Customer Question

My dad who is 80, just rec'd a letter saying that the California Teachers Retirement Fund has been overpaying him for the last 14 years because they didn't adjust his payement when my mother died in 1999. He did remarry three years later. They say technically he owes them $131,000 but they have a policy that he only will owe for 39 months. Does he really have to pay, since it was their mistake. Does the fact that he remarried count for anything? Lucia Smith
Submitted: 1 year ago.
Category: California Employment Law
Expert:  LawTalk replied 1 year ago.

Good morning,

I'm Doug, and I'm very sorry to hear of your father's situation. My goal is to provide you with excellent service today.

When a retired school employee loses their spouse to death, their retirement compensation actually either stays the same, or in some instances it even increases---it should not go down.

Can you please clarify which of your parents earned the employee pension from the Teachers Retirement System, and which was a Beneficiary of the employee ?

Doug

Customer: replied 1 year ago.
I am just checking with my father via email to Norway. I asked if he was the employee who earned the pension, or if my mom was of if it was a combination of the two. I just assumed it was his but better to check to be sure. There have been two letters now telling him that his payment has been reduced and also that he may owe $$ for 36 months of overpayment. They say they will call w/in 30 days to tell me more. If this is bogus, what should my next step be? Can I dispute this myself on his behalf? I haven't told him yet about the letters because I hoped to have a solution to the problem when I broke the news. He will be really upset.
Lucia
Customer: replied 1 year ago.
Just rec'd confirmation that it is only my father's pension.
Expert:  LawTalk replied 1 year ago.

Good morning Lucia,

Based on the facts that you have provided me thus far, I can accurately speculate what the remaining facts are, and unfortunately, there is a very good chance that this is not a scam.

Under the CalPERS retirement system, an employee may choose from several different retirement packages. There is a 100% Beneficiary Option, a 75% Beneficiary Option and a 50% Beneficiary Option. The lower the percentage chosen, the greater the pension payment is made to the employee while they are living. However, except for the 100% Beneficiary Option, on the death of the retired employee, their surviving spouse is entitled to only 75% or perhaps even 50% of the original pension payment as their continuing survivor benefit.

No presuming that it was your mother who was the employee with the CalPERS pension, when she passed, your father should have notified CalPERS of the death. At that point, unless your mother has chosen the 100% Beneficiary Option, your dad's monthly payment would have dropped to either 75% or 50% of the previous benefit payment.

When, for whatever reason CalPERS didn’t get the information into their system, the payment did not decrease and that created an overpayment situation. Under the laws of the state of CA, the CalPERS program is allowed to seek to collect overpayments made by the program. However, and very fortunately for your father, there is a statute of limitations on how far back the program may go to collect overpayments.

I was concerned when you initially wrote that they were seeking 39 months of overpayment, because that did not conform to the law. The Statute of Limitations under CA law is 3 years---which is 36 months---which you seem to have corrected when you wrote back recently.

So, what you say does make perfect sense, and it will be valid, if it was your mother who had the pension and named your father as the Beneficiary.

Here is a link to a discussion of the CalPERS program and the Pre-Retirement Election of Options that resulted in the overpayment after your mother died: https://forms.calstrs.com/CalSTRSOnlineFormRequestWebUI/Root/Pages/OpenAttachment.aspx?FormId=2cbd432f-bdb3-4996-b89d-3d3594dade87

And as for the time period in which CalPERS is allowed to seek a refund of any overpayment, here is that law:

Government Code section 20164 provides:

"(a) The obligations of this system to its members continue throughout their

respective memberships, and the obligations of this system to and in respect to

retired members continue throughout the lives of the respective retired members,

and thereafter until all obligations to their respective beneficiaries under optional

settlements have been discharged. The obligations of the state and contracting

agencies to this system in respect to members employed by them, respectively,

continue until all of the obligations of this system in respect to those retired members,

respectively, have been discharged. The obligations of any member to this system

continue throughout his or her membership, and thereafter until all of the obligations

of this system to or in respect to him or her have been discharged.

(b) For the purposes of payments into or out of the retirement fund for adjustment of

errors or omissions, whether pursuant to Section 20160, 20163, or 20532, or

otherwise, the period of limitation of actions shall be Three years, and shall be

applied as follows:

(1) In cases where this system makes an erroneous payment to a

member or beneficiary, this system's right to collect shall expire three

years from the date of payment.

(2) In cases where this system owes money to a member or

beneficiary, the period of limitations shall not apply.

(3) In cases where payment is erroneous because of the death of the

retired member or beneficiary or because of the remarriage of the

beneficiary, the period of limitation shall commence with the discovery

of the erroneous payment.

(c) Notwithstanding subdivision (b), where any payment has been made as a result

of fraudulent reports for compensation made, or caused to be made, by a member

for his or her own benefit, the period of limitation shall be 10 years and that period

shall commence either from the date of payment or upon discovery of the fraudulent

reporting, whichever date is later.

(d) The board shall determine the applicability of the period of limitations in any

case, and its determination with respect to the running of any period of limitation

shall be conclusive and binding for purposes of correcting the error or omission."

And finally, here is a link to a case in which THE BOARD OF ADMINISTRATION
CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM confirms this 3 year statute of limitations:

http://www.calpers.ca.gov/eip-docs/about/leg-reg-statutes/board-decisions/past/98-02-henderson.pdf

If you are able to get a Power of Attorney signed by your father, I suspect that the folks over at CalPERS may speak with you and provide you with documentation concerning the original Election of Options and the Beneficiary percentage your father is entitled to under that election. They might even speak with you over the phone now, but I doubt they would be willing to provide you documentation without that Power of Attorney.


You may reply back to me using the Continue the Conversation or Reply to Expert link if you need any clarification of my answer.


Please remember to rate my service to you when our communication is completed, so that I will be compensated for my time in providing you with the information you requested. I will be happy to continue further, and to assist you until I am able to address your concerns, to your satisfaction.

I wish you the best in 2013,

Doug

Customer: replied 1 year ago.
Wait a minute, this is exactly the opposite of what I just wrote to you. It was my FATHER who was the employee, not my mother. So why are they decreasing his benefit? Can you please respond? Is it the same as before?
Expert:  LawTalk replied 1 year ago.

Good morning Lucia,

I apologize for any misunderstanding. I only saw the post that stated that you didn't know who was the employee and that you would check. (I began researching and writing before 8 AM when you posted the information about your father). Apparently, while I was researching and preparing the lengthy response to your father's situation, including case law, code law and articles for your perusal, you came back and added the note that your father was the employee. I did not see that even after I posted my answer---but only when you just now brought it to my attention.

If in fact it was your father who was the employee then there would be no overpayment, as the pension does not decrease when the beneficiary passes before the employee---only when the employee passes first.

I have no explanation for what CalPERS is claiming and I see only three possibilities. One, CalPERS is mistaken as regards XXXXX XXXXX that your father is receiving. Two, your father is mistaken as to the pension benefit being collected.

And three, it is possible that both of your parents qualified under the CalPERS system, and that each was getting a pension payment? If that was the case, and presuming that each named the other as the beneficiary, then there would be a reduction on the death of one of them as far as a continuing beneficiary payment to the other is concerned.

As I don't have access to the specific pension documents, it is impossible for me to know what has occurred at this point.

Doug

LawTalk, Attorney
Satisfied Customers: 27876
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
LawTalk and other California Employment Law Specialists are ready to help you
Expert:  LawTalk replied 1 year ago.
Good evening Lucia,

I wanted to thank you for using JustAnswer, and to inquire whether my answer to you was helpful to your understanding of the law, as regards XXXXX XXXXX

Is there anything else that I can assist you with, please feel free to ask. If you do not require further legal information at this time, please feel free to bookmark my profile so you can request me when you do have another question. Here is a link to my profile: http://www.justanswer.com/law/expert-lawtalk/

Thank you very much and take care.

Doug
Customer: replied 1 year ago.
Yes thanks Doug. Very helpful. I guess there is no way to contest this if it is in the contract. I expect that when I call California Teachers Retirement they will say that my mom did partially contribute to this retirement fund. I suspect that father is probably misremembering. I guess 36 months is better than the full amount. Maybe they will let him make payments.
Expert:  LawTalk replied 1 year ago.
Thank you for your positive rating of my service, Lucia. It has been my pleasure to assist you and I hope than you will ask for me on JustAnswer should a future need ever arise.

Please feel free to bookmark the following link so you can request me to answer any future legal questions you may have:
http://www.justanswer.com/law/expert-lawtalk/

Thanks again.

Doug

When you receive your Customer Satisfaction Survey from JustAnswer, please do rate me highly (9-10) there as well. It benefits my ability to assist you and other customers, and would be tremendously appreciated.

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