1. A. Upon retirement pursuant to the Educational Retirement Act, a member may elect, and, except as provided in Subsection D, E or F of this section, such election shall be irrevocable, to receive the actuarial equivalent of the member's retirement benefit, as provided in Section 22-11-30 NMSA 1978, to be effective on the member's retirement in any one of the following optional forms:

   1. (1) OPTION A. An unreduced retirement benefit pursuant to Section 22-11-30 NMSA 1978;
   2. (2) OPTION B. A reduced annuity payable during the member's life with provision that upon the member's death the same annuity shall be continued during the life of and paid to the beneficiary designated by the member in writing at the time of electing this option; or
   3. (3) OPTION C. A reduced annuity payable during the member's life with provision that upon the member's death one-half of this same annuity shall be continued during the life of and paid to the beneficiary designated by the member in writing at the time of electing this option.
2. B. In the case of Options B and C of Subsection A of this section, the actuarial equivalent of the member's retirement benefit shall be computed on the basis of the lives of both the member and the beneficiary or in the event that a supplemental needs trust is the designated beneficiary, the life of the member and the beneficiary of that trust.

3. C. In the event that the named beneficiary of a retired member who elected Option B or C of Subsection A of this section at the time of retirement predeceases the retired member or the supplemental needs trust terminates while the retired member is living, the annuity of the retired member shall be adjusted by adding an amount equal to the amount by which the annuity of the retired member was reduced at retirement as a result of the election of Option B or C of Subsection A of this section. The adjustment authorized in this subsection shall be made as follows:

   1. (1) beginning on the first month following the month in which the named beneficiary of a retiree dies or the beneficiary of a supplemental needs trust that is the named beneficiary dies or that trust otherwise terminates applicable to an annuity received by a retiree who retires after June 30, 1987; or
   2. (2) beginning on July 1, 1987 applicable to an annuity received by a retiree who retired prior to July 1, 1987 and otherwise qualifies for the adjustment; provided, however, no adjustment shall be made retroactively.

4. D. A retired member who is being paid an adjusted annuity pursuant to Subsection C of this section because of the death of the named beneficiary or the death of the beneficiary of a supplemental needs trust or the termination of that trust may exercise a one-time irrevocable option to designate another beneficiary and may select either Option B or Option C of Subsection A of this section; provided that:

   1. (1) the amount of the annuity under the option selected shall be recalculated and have the same actuarial present value, computed on the effective date of the designation, as the annuity being paid to the retired member prior to the designation;
   2. (2) the designation and the amount of the annuity shall be subject to a court order as provided for in Subsection B of Section 22-11-42 NMSA 1978; and
   3. (3) the retired member shall pay one hundred dollars ($100) to the board to defray the cost of determining the new annuity amount.

5. E. A retired member who is being paid an annuity under Option B or C of Subsection A of this section with a living or operating designated 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. (1) designate another beneficiary; provided that:

      1. (a) the retired member shall not have an option to change from the current form of payment;
      2. (b) the amount of the annuity under the form of payment shall be recalculated and shall have the same actuarial present value, computed on the effective date of the designation, as the amount of annuity paid prior to the designation; and
      3. (c) the retired member shall pay one hundred dollars ($100) to the board to defray the cost of determining the new annuity amount; or
   2. (2) have future annuity payments made without a reduction as a result of Option B or C of Subsection A of this section.

6. F. A retired member who is being paid an annuity under Option B or C of Subsection A of this section with the member's spouse as the designated beneficiary may exercise a one-time irrevocable option to deselect the designated beneficiary and elect to:

   1. (1) designate another beneficiary; provided that:

      1. (a) the retired member shall not have an option to change from the current form of payment;
      2. (b) the amount of the annuity 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 annuity paid prior to the designation;
      3. (c) the retired member's spouse provides a notarized, written statement expressing the spouse's consent to relinquish the designation as a beneficiary; and
      4. (d) the retired member shall pay one hundred dollars ($100) to the board to defray the cost of determining the new annuity amount;
   2. (2) have the future annuity payments made without a reduction as a result of Option B or C of Subsection A of this section;
   3. (3) upon becoming divorced from the named spouse and subject to an order of a court as provided for in Subsection B of Section 22-11-42 NMSA 1978, elect to have future annuity payments made under retirement benefit Option A of Subsection A of this section;

   4. (4) upon becoming divorced from the named spouse, exercise a one-time irrevocable option to designate another beneficiary; provided that:

      1. (a) the retired member shall not have an option to change from the current form of payment;
      2. (b) the amount of the annuity under the form of payment selected shall be recalculated and shall have the same actuarial present value, computed as of the effective date of the designation, as the amount of annuity paid prior to the designation;
      3. (c) the designation and the amount of the annuity shall be subject to a court order as provided for in Subsection B of Section 22-11-42 NMSA 1978; and
      4. (d) the retired member shall pay one hundred dollars ($100) to the board to defray the cost of determining the new annuity amount; or
   5. (5) have the future annuity payments made without a reduction as a result of Option B or C of Subsection A of this section.
7. G. In the event of the death of the member who has not retired and who has completed at least five years' earned service credit, the member shall be considered as retiring on the first day of the month following the date of death, and the benefits due the surviving beneficiary, computed on that date, shall, except as provided in Subsection K of this section, be commenced effective on the first day of such month in accordance with the terms of Option B of Subsection A of this section. In lieu of the provisions of Option B, the surviving beneficiary may elect to receive payment of all the contributions made by the member, plus interest at the rate set by the board reduced by the sum of any disability benefits previously received by the member, or the surviving beneficiary may choose to defer receipt of the survivor's benefit to whatever age the beneficiary chooses up to the time the member would have attained age sixty. If the benefit is thus deferred, it shall be calculated as though the member had retired on the first day of the month in which the beneficiary elects to receive the benefit. In the event of the death of the beneficiary or in the event that a supplemental needs trust is the designated survivor beneficiary, the termination of that trust or the death of the beneficiary of that trust after the death of the member and prior to the date on which the beneficiary has elected to receive the beneficiary's benefit, the estate of the beneficiary shall be entitled to a refund of the member's contributions plus interest at the rate earned by the fund during the preceding fiscal year, reduced by the sum of any disability benefits previously received by the member.
8. H. In the event of the death of a member who has not retired and who has completed at least five years' earned service credit, but who has not designated a beneficiary in writing pursuant to the Educational Retirement Act, the eligible surviving spouse or surviving domestic partner shall be the surviving beneficiary eligible for benefits in accordance with the provisions of Subsection G of this section.
9. I. In the case of death of a retired member who did not elect either Option B or C of Subsection A of this section and before the benefits paid to the member have equaled the sum of the member's accumulated contributions to the fund plus accumulated interest at the rate set by the board, the balance shall be paid to the beneficiary designated in writing to the director by the member or, if no beneficiary was designated, to the eligible surviving spouse or surviving domestic partner of the member or, if there is no eligible surviving spouse or domestic partner of the member, to the estate of the member.
10. J. No benefit shall be paid pursuant to this section if the member's contributions have been refunded pursuant to Section 22-11-15 NMSA 1978.
11. K. In the case of death of a member with less than five years' earned service credit or death of a member who has filed with the director a notice rejecting the provisions of Subsection G of this section, which notice shall be revocable by the member at any time prior to retirement, the member's contributions to the fund plus interest at the rate set by the board shall be paid to the beneficiary designated in writing to the director by the member or, if no beneficiary was designated, to the eligible surviving spouse or surviving domestic partner of the member or, if there is no eligible surviving spouse or domestic partner of the member, to the estate of the member.

History: 1953 Comp., § 77-9-28, enacted by Laws 1967, ch. 16, § 152; 1977, ch. 314, § 1; 1981, ch. 294, § 2; 1984, ch. 19, § 5; 1987, ch. 86, § 1; 1999, ch. 93, § 2; 2003, ch. 39, § 7; 2011, ch. 122, § 2; 2017, ch. 21, § 11; 2019, ch. 173, § 1; 2023, ch. 156, § 19; 2025, ch. 38, § 1.

ANNOTATIONS

Cross references. — For payment of benefits upon death during reemployment, see 22-11-26 NMSA 1978.

For disability benefits, see 22-11-35 to 22-11-40 NMSA 1978.

The 2025 amendment, effective June 20, 2025, allowed members to exercise a one-time irrevocable option to deselect their spouse as designated beneficiary and select a new designated beneficiary; in Subsection A, after "Subsection D, E" added "or F"; in Subsection C, in the introductory paragraph, after "Option B or C" added "of Subsection A of this section"; in Subsection E, Paragraph E(2), after "Option B or C" added "of Subsection A of this section"; added a new Subsection F and redesignated former Subsections F through J as Subsections G through K, respectively; in Subsection G, after "Subsection" deleted "J" and added "K"; and in Subsections H and K, after "Subsection" deleted "F" and added "G".

The 2023 amendment, effective June 16, 2023, allowed a supplemental needs trust to be named as a survivor or refund beneficiary; in Subsection B, added "or in the event that a supplemental needs trust is the designated survivor beneficiary, the life of the member and the beneficiary of that trust", in Subsection C, in the introductory paragraph, added "or the supplemental needs trust terminates while the retired member is living"; in Paragraph C(1), added "or the beneficiary of a supplemental needs trust that is the named beneficiary dies or that trust otherwise terminates"; in Subsection D, in the introductory clause, added "or the death of the beneficiary of a supplemental needs trust or the termination of that trust", and after "designate another", deleted "individual as the"; in Subsection E, in the introductory clause, after "section with a living", added "or operating", and after "former spouse", added "or the supplemental needs trust of the retired member's spouse or former spouse"; and in Subsection F, added "or in the event that a supplemental needs trust is the designated survivor beneficiary, the termination of that trust or the death of the beneficiary of that trust".

The 2019 amendment, effective June 14, 2019, provided that a surviving spouse, or surviving domestic partner, of a deceased member of the educational retirement plan be considered the beneficiary of the deceased member if the deceased member has not designated a beneficiary; added a new Subsection G and redesignated former Subsections G through I as Subsections H through J, respectively; in Subsection H, added "eligible surviving spouse or surviving domestic partner of the member or, if there is no eligible surviving spouse or domestic partner of the member, to the"; and in Subsection J, added "eligible surviving spouse or surviving domestic partner of the member or, if there is no eligible surviving spouse or domestic partner of the member, to the".

The 2017 amendment, effective June 16, 2017, added a new retirement benefits option; added new Paragraph A(1) and redesignated former Paragraphs A(1) and A(2) as Paragraphs A(2) and A(3), respectively; and deleted Subsection J, which related to certain void elections of benefit options.

The 2011 amendment, effective July 1, 2011, added Subsection D to permit a retired member who, because of the death of a designated beneficiary, is being paid an adjusted annuity pursuant to Subsection C to designate another beneficiary upon the death of the initial designated beneficiary and to be paid under either option B or C, subject to recalculation of the amount of the pension, court-ordered divisions of community property and payment of child support obligations, and payment of the prescribed fee; added Subsection E to permit a retired member to deselect a living designated beneficiary and designate another beneficiary, subject to recalculation of the amount of the annuity and payment of the prescribed fee; and in Subsection J, provided that elections of payment options on file with the director on June 30, 1984 by members who have not retired prior to June 30, 1984 are void.

The 2003 amendment, effective June 20, 2003, inserted "of Subsection A of this section" following "Option B or C" near the beginning of Subsection C; in Subsection D, inserted "of Subsection A of this section" following "Option B" and substituted "set by the board" for "earned by the fund during the preceding fiscal year" following "plus interest at the rate" near the middle; in Subsection E, inserted "of Subsection A of this section" following "Option B or C" near the beginning and substituted "rate set by the board" for "average rate earned by the fund during the preceding five fiscal years" following "interest at the" near the middle; and substituted "rate set by the board" for "rate earned by the fund during the preceding fiscal year" following "interest at the rate" near the middle of Subsection G.

The 1999 amendment, effective June 18, 1999, inserted the language beginning "plus accumulated" and ending "fiscal years" in Subsection E, and made a minor stylistic change.

Amendment is not retroactive. — The 1999 amendment (Laws 1999, ch. 93, § 2) to Subsection E of Section 22-11-29 NMSA 1978, which provided for the payment of interest on refunds of accumulated contributions, applies prospectively only. Wood v. N.M. Educ. Ret. Bd., 2011-NMCA-020, 149 N.M. 455, 250 P.3d 881, cert. denied, 2011-NMCERT-001.

Where decedent elected to receive a single life annuity when decedent retired in 1998 and decedent died in 1998, the 1999 amendment (Laws 1999, ch. 93, § 2) to Subsection E of Section 22-11-29 NMSA 1978 did not apply, and decedent’s beneficiary was not entitled to receive interest on the amount of decedent’s accumulated contribution that was paid to the beneficiary. Wood v. N.M. Educ. Ret. Bd., 2011-NMCA-020, 149 N.M. 455, 250 P.3d 881, cert. denied, 2011-NMCERT-001.