Chapter 40

40.65(7)(a)3. 3. The total monthly amount paid under subds. 1. and 2. may not exceed 65 percent of the participant’s monthly salary as reflected at the time of death. Any reduction of benefits caused by such limitation shall be done on a proportional basis.

40.65(7)(am) (am) This paragraph applies to benefits based on applications filed on or after May 3, 1988. If a protective occupation participant dies as a result of an injury or a disease for which a benefit is paid or would be payable under sub. (4), and the participant is survived by a spouse, domestic partner, or an unmarried child under the age of 18, a monthly benefit shall be paid as follows:

40.65(7)(am)1. 1. To the surviving spouse until the surviving spouse remarries, if the spouse was married to the participant on the date that the participant was disabled under sub. (4), 50 percent of the participant’s monthly salary at the time of death, but reduced by any amount payable under sub. (5) (b) 1. to 6.

40.65(7)(am)1g. 1g. To the surviving spouse until the surviving spouse remarries, if the spouse was in a domestic partnership with the participant on the date that the participant was disabled under sub. (4) and the disability under sub. (4) occurred before January 1, 2018, 50 percent of the participant’s monthly salary at the time of death, but reduced by any amount payable under sub. (5) (b) 1. to 6.

40.65(7)(am)1m. 1m. To the surviving domestic partner until the surviving domestic partner marries, if the domestic partner was in a domestic partnership with the participant on the date that the participant was disabled under sub. (4) and the disability under sub. (4) occurred before January 1, 2018, 50 percent of the participant’s monthly salary at the time of death, but reduced by any amount payable under sub. (5) (b) 1. to 6.

40.65(7)(am)2. 2. To a guardian for each of that guardian’s wards who is an unmarried surviving child under the age of 18, 10 percent of the participant’s monthly salary at the time of death, payable until the child marries, dies or reaches the age of 18, whichever occurs first. The marital or domestic partnership status of the surviving spouse or domestic partner shall have no effect on the payments under this subdivision.

40.65(7)(am)3. 3. The total monthly amount paid under subds. 1., 1g., 1m., and 2. may not exceed 70 percent of the participant’s monthly salary at the time of death reduced by any amounts under sub. (5) (b) 1. to 6. that relate to the participant’s work record.

40.65(7)(am)4. 4. Benefits payable under this paragraph shall be increased each January 1 by the salary index determined for the prior year.

40.65(7)(ar) (ar)

40.65(7)(ar)1. 1. This paragraph applies to benefits based on applications filed on or after May 12, 1998. If a protective occupation participant, who is covered by the presumption under s. 891.455, dies as a result of an injury or a disease for which a benefit is paid or would be payable under sub. (4), and the participant is survived by a spouse, domestic partner, or an unmarried child under the age of 18, a monthly benefit shall be paid as follows:

40.65(7)(ar)1.a. a. To the surviving spouse until the surviving spouse remarries, if the surviving spouse was married to the participant on the date that the participant was disabled under sub. (4), 70 percent of the participant’s monthly salary at the time of death, but reduced by any amount payable under sub. (5) (b) 1. to 6.

40.65(7)(ar)1.ag. ag. To the surviving spouse until the surviving spouse remarries, if the spouse was in a domestic partnership with the participant on the date that the participant was disabled under sub. (4) and the disability under sub. (4) occurred before January 1, 2018, 70 percent of the participant’s monthly salary at the time of death, but reduced by any amount payable under sub. (5) (b) 1. to 6.

40.65(7)(ar)1.am. am. To the surviving domestic partner until the surviving domestic partner marries, if the domestic partner was in a domestic partnership with the participant on the date that the participant was disabled under sub. (4) and the disability under sub. (4) occurred before January 1, 2018, 70 percent of the participant’s monthly salary at the time of death, but reduced by any amount payable under sub. (5) (b) 1. to 6.

40.65(7)(ar)1.b. b. If there is no surviving spouse or domestic partner or the surviving spouse or domestic partner subsequently dies, to a guardian for each of that guardian’s wards who is an unmarried surviving child under the age of 18, 10 percent of the participant’s monthly salary at the time of death, payable until the child marries, dies or reaches the age of 18, whichever occurs first.

40.65(7)(ar)2. 2. Benefits payable under this paragraph shall be increased each January 1 by the salary index determined for the prior year.

40.65(7)(b) (b) Any person entitled to a benefit under both this subsection and ch. 102 because of the death of the same participant, shall have his or her benefit under this subsection reduced in an amount equal to the death benefit payable under ch. 102.

40.65(9) (9) This section is applicable to protective occupation participants who apply for a benefit under this section on or after July 1, 1982. A participant may not apply for a benefit under this section if he or she is receiving a benefit under s. 66.191, 1981 stats., on July 1, 1982.

40.65 History History: 1981 c. 278; 1983 a. 9; 1983 a. 141 s. 20; 1983 a. 191 s. 6; 1983 a. 255; 1985 a. 332 s. 251 (1); 1987 a. 363; 1989 a. 240, 357; 1995 a. 27 s. 9130 (4); 1997 a. 3, 39, 173, 237; 2007 a. 131; 2009 a. 28; 2015 a. 55; 2017 a. 12, 59; 2023 a. 4.

40.65 Cross-reference Cross-reference: See s. 891.45 for provision as to presumption of employment-connected disease for certain municipal fire fighters.

40.65 Cross-reference Cross-reference: See also LIRC and ss. ETF 52.01 and HA 4.16, Wis. adm. code.

40.65 Annotation The Wisconsin Retirement Board may not reduce duty disability benefits under sub. (5) (b) 3. for worker’s compensation benefits that are paid to a participant before the duty disability payments commence, and may do so only for worker’s compensation not yet paid. Coutts v. Wisconsin Retirement Board, 209 Wis. 2d 655, 563 N.W.2d 917 (1997), 95-1905.

40.65 Annotation The Retirement Board is authorized to promulgate administrative rules interpreting sub. (3). Kuester v. Wisconsin Retirement Board, 2004 WI App 10, 269 Wis. 2d 462, 674 N.W.2d 877, 03-0056.

40.65 Annotation The Retirement Board correctly construed sub. (5) (b) in determining duty disability benefits when it reduced those benefits by earnings and lump sum worker’s compensation benefits received after the effective date of the duty disability benefits. The board was reasonable in reading Coutts to hold that the statutorily specified sums are payable when they are received and that it is proper to offset them against duty disability benefits. Carey v. Wisconsin Retirement Board, 2007 WI App 17, 298 Wis. 2d 373, 728 N.W.2d 22, 06-1233.

subch. VI of ch. 40 SUBCHAPTER VI

SURVIVOR BENEFITS

40.70 40.70 Life insurance coverage.

40.70(1) (1) Except as provided in sub. (11), each eligible employee of an employer shall be insured under the group life insurance plan provided under this subchapter if all of the following apply:

40.70(1)(a) (a) The employer is a participating employer under the Wisconsin retirement system and was included in the group life insurance program by s. 40.20 (5m), 1979 stats., or the governing body of the employer has adopted a resolution in a form prescribed by the department to make coverage available to its employees or is the state. Coverage may also be extended by rule to employees under other retirement systems if the employer adopts a resolution as specified in this paragraph. A certified copy of the resolution shall be filed with the department and the resolution takes effect on the first day of the 4th month beginning after the date of filing. An employer may provide group life insurance for its employees through separate contracts in addition to, or in lieu of, the group life insurance provided by the department under this subchapter.

40.70(1)(b) (b) The employee files an application in the manner provided by rule or contract, to be effective on a date fixed by the department, for one or more of the types of coverage established under this subchapter. The group insurance board may provide a different method of enrollment than provided under this subsection.

40.70(1)(c) (c) The employee pays the employee contribution toward the life insurance premium under s. 40.05 (6).

40.70(2) (2) A resolution adopted under sub. (1) (a) takes effect only if the department determines that at least 50 percent of the eligible employees of that employer will be covered at the time that the resolution is effective. The department’s determination shall be based on the employer’s prior year-end report of the number of employees participating in the Wisconsin retirement system or, if the employer was not a participating employer in the prior year, on the number of employees who, on or before the 15th day of the month immediately preceding the effective date of the resolution, have applied for group life insurance coverage under this subchapter. If the department nullifies a resolution based on insufficient participation, the employer may not file another resolution under sub. (1) (a) during the first 6 months after the date of the previous filing.

40.70(3) (3) Employers may adopt resolutions providing all the coverages provided under this subchapter or provided by contract or may identify in the resolution only specified coverages that are authorized by contract to be offered separately. Employees may file an application under sub. (1) (b) for the amount of coverage provided under s. 40.72 (1) and for any other coverage offered by their employer. The department shall determine the method of administration and the procedure for collection of premiums and employer costs.

40.70(4) (4) 

40.70(4)(a) (a) The governing body of any employer may do any of the following:

40.70(4)(a)1. 1. Change the coverage that it makes available to its employees under s. 40.72 (2) or (3) by adopting an amended resolution and filing a certified copy of the amended resolution with the department.

40.70(4)(a)2. 2. Withdraw from making coverage under this subchapter available to its employees by adopting a withdrawal resolution and filing a certified copy of the withdrawal resolution with the department.

40.70(4)(a)3. 3. Nullify its amended resolution or withdrawal resolution at any time before it becomes effective by adopting a nullifying resolution and filing a certified copy of the nullifying resolution with the department.

40.70(4)(b) (b) Except as provided in sub. (5), amended resolutions and withdrawal resolutions take effect on the first day of the 4th month beginning after the date of filing. Nullifying resolutions take effect on the date of filing.

40.70(4)(c) (c) If a withdrawal resolution becomes effective, the employer may not file another resolution under sub. (1) (a) during the first 12 months after the effective date of the withdrawal resolution.

40.70(5) (5) The department may accept or reject an amended resolution, or a resolution under sub. (1) (a) that is filed after the employer’s withdrawal resolution becomes effective, and may charge the employer for any postretirement insurance liability.

40.70(6) (6) Except as provided in sub. (7m), any employee who has not applied for coverage under sub. (1) within the time period specified by rule or contract after becoming eligible for coverage or any employee whose insurance terminates under sub. (8) shall not thereafter become insured for that coverage unless the employee furnishes evidence of insurability satisfactory to the insurer, at his or her own expense. If the evidence is approved, the employee shall become insured on the first day of the first month beginning after the approval.

40.70(7m) (7m) If, as a result of employer error, an employee has not filed an application with the department as required under sub. (1) (b) or made premium contributions as required under sub. (1) (c) within 60 days after becoming eligible for group life insurance coverage, the employee is considered not to be insured for that coverage. The employee may become insured by filing a new application under sub. (1) (b) within 30 days after the employee receives from the employer written notice of the error. An employee is not required to furnish evidence of insurability to become insured under this subsection. An employee becomes insured under this subsection on the first day of the first month beginning after the date on which the employer receives the employee’s new application under sub. (1) (b).

40.70(8) (8) An insured employee may at any time cancel one or more of the types of life insurance coverage provided under this subchapter by filing a cancellation form with his or her employer. The cancellation form shall be transmitted immediately to the department.

40.70(9) (9) The life insurance shall terminate as provided in the contract which shall also provide an option for an employee to convert insurance coverage upon termination of employment if covered by the insurance during the entire 6 months preceding termination or if covered by the insurance from the initial effective date for that employer, to the date of termination.

40.70(10) (10) The group insurance board may provide for the continuation or suspension of insurance coverage during any month in which no earnings are received during a leave of absence.

40.70(11) (11) An eligible state employee shall not be insured under the group life insurance provided under this subchapter if the employee elects insurance coverage with a county under s. 978.12 (6).

40.70 History History: 1981 c. 96; 1989 a. 13, 31, 182; 1991 a. 152; 2007 a. 131; 2017 a. 362.

40.70 Cross-reference Cross-reference: See also s. ETF 60.31, Wis. adm. code.

40.71 40.71 Death benefit eligibility. The following described persons are entitled to death benefits from the Wisconsin retirement system, in the form and at the times specified:

40.71(1) (1) The beneficiary of any participant or of any annuitant on the date of death of the participant or annuitant. For purposes of this subsection:

40.71(1)(a) (a) A participant is deemed a participating employee on the date of death even though the participant is then an applicant for a retirement or disability annuity, except as provided by s. 40.63 (8) (h), if the participant’s application was received by the board within 30 days after the participant ceased to be a participating employee and the participant would have been entitled to the annuity had the participant lived.

40.71(1)(b) (b) If the date of death is less than one year after the last day for which earnings were paid, a participant is deemed a participating employee on leave of absence, notwithstanding the fact that no formal leave of absence is in effect, if the participating employer for which the participant last performed services as a participating employee has not filed notice of the termination of employment prior to the employee’s death.

40.71 Cross-reference Cross-reference: See also s. ETF 20.37, Wis. adm. code.

40.71(1)(c) (c) If the death of a participating employee on leave of absence, other than a leave for purposes of military service, arises from employment by any employer other than a participating employer, employment is deemed to have terminated and the participant shall not be considered a participating employee on the date of his or her death.

40.71(1)(d) (d) Every participant is deemed an annuitant immediately upon the effective date of the participant’s annuity, or the date the application is received by the department if the participant is living on that date, whichever is later.

40.71(1)(e) (e) Any annuitant whose annuity is terminated shall cease to be an annuitant as of the last day of the month preceding the last day on which the annuity is payable.

40.71(2) (2) Any death benefit may be paid as a beneficiary annuity, subject to s. 40.73 (3), or as a single cash sum as specified by the beneficiary in the application for the death benefit unless the participant prohibited payment of a single cash sum in a written notice received by the department prior to the participant’s death. A prohibition on payment of a single cash sum shall not be effective if the monthly amount of the annuity would be less than the amount determined under s. 40.25 (1) (a) or if the beneficiary is the participant’s estate or a trust in which the beneficiary has a beneficial interest.

40.71(3) (3) Whenever any death benefit is payable in a single cash sum, it shall be paid only after receipt by the department of the following:

40.71(3)(a) (a) A copy of the death certificate of the participant or annuitant;

40.71(3)(b) (b) A written application of the beneficiary for the benefit; and

40.71(3)(c) (c) Any additional evidence deemed necessary or desirable by the department.

40.71 History History: 1981 c. 96; 1987 a. 309.

40.71 Cross-reference Cross-reference: See also s. ETF 20.37, Wis. adm. code.

40.71 Annotation Nothing in s. 40.73 creates an entitlement in the beneficiary to the annuity-value single cash sum benefit as of the date of death even though the value of the single cash sum benefit is calculated as of the date of death. A beneficiary does not acquire a property interest in a single cash sum death benefit under s. 40.73 (1) (c) until the beneficiary applies for a death benefit as required by sub. (3). Fazio v. Department of Employee Trust Funds, 2006 WI 7, 287 Wis. 2d 106, 708 N.W.2d 326, 04-0064.

40.72 40.72 Life insurance benefits.

40.72(1) (1) Except as provided in sub. (2), (3), (3m), (8) or (10), the amount of group life insurance of an insured employee under age 70 shall be $1,000 of insurance for each $1,000 or part of $1,000 of the employee’s annual earnings during the prior calendar year, notwithstanding any limitation of amount that may otherwise be provided by law. For persons covered initially the earnings shall be a projection on an annual basis of the compensation at the time of coverage until the date determined by the group insurance board for establishing new annual amounts of insurance.

40.72(2) (2) Except as provided by sub. (3), the amount of life insurance for any insured eligible employee who is 70 years of age or older or insured retired eligible employee under sub. (4) who is 65 years of age or over shall be the amount as computed under sub. (1) reduced by 25 percent of that amount on each birthday of the employee commencing with the employee’s 65th birthday, with a maximum reduction of 75 percent.

40.72(3) (3) The maximum reduction in the amount of insurance for any insured employee to whom this subsection applies by an election under s. 40.70 (3) and for any insured state employee shall be 50 percent.

40.72(3m) (3m) The group insurance board may, by contract, limit the amount of group life insurance for any insured employee who becomes insured by electing coverage under s. 40.70 (6).

40.72(4) (4) The amount of life insurance for any insured employee who was either a participating employee before January 1, 1990, or who has been covered under the group life insurance plan in at least 5 calendar years after 1989, who terminates employment shall be the same as if the employee had not terminated employment and earnings had continued at the same amount as at the time of termination, except as provided in subs. (2) and (3) and s. 40.70 (3), if any of the following applies on the date of termination:

40.72(4)(a) (a) The employee meets all of the requirements for receiving an immediate annuity except the filing of an application.

40.72(4)(b) (b) The sum of the employee’s creditable service on January 1, 1990, and the number of calendar years after 1989 in which the employee has been covered under the group life insurance plan equals at least 20 years.

40.72(4)(c) (c) The employee’s number of years of service with the participating employer by whom the employee was employed immediately before termination equals at least 20 years.

40.72(4g) (4g) Any individual who became an employee of the state under chapter 90, laws of 1973, section 546, as affected by chapter 333, laws of 1973, section 189b, may use service as a member of the Milwaukee County employee’s retirement system to meet any service requirements under this subchapter.

40.72(4r) (4r) At any time after an insured employee’s amount of life insurance is reduced under subs. (2) and (3) and life insurance premiums are no longer required under s. 40.05 (6) (b), the employee may convert the present value of the life insurance to pay the premiums for health or long-term care insurance provided under subch. IV, but only if the department determines that the value of the conversion is exempt from taxation under the Internal Revenue Code.

40.72(5) (5) The amount of insurance specified under sub. (4) shall be adjusted when the person again becomes an employee of an employer participating in the group life insurance plan and while employed again the person shall pay premiums under s. 40.05 (6) for the insurance.

40.72(6) (6) The amount of insurance of an employee who retires on disability annuity shall be the same as if the employee had not retired and his or her earnings had continued in the same amount as at the time of his or her retirement, except as provided by subs. (2) and (3).

40.72(7) (7) During a period of disability in which premiums are waived under the terms of the insurance contract the amount of insurance shall be the same as if the employee had not become disabled and earnings had continued at the same amount as at the time of becoming disabled, and the contract may provide that the insurance continues during the continuance of the disability even if the person ceases to be an employee.

40.72(8) (8) The life insurance in effect during the previous year shall not be reduced during subsequent consecutive years of eligible employment with the same employer unless the employee elects to have the amount of life insurance recomputed under subs. (1) to (3) or cancels coverage. The election shall be made under procedures established by the department. This subsection is subject to the limitations of subs. (2) and (3).

40.72(9) (9) In addition to the insurance provided under sub. (1), insurance may be provided against accidental death and dismemberment as defined by the group insurance board in accordance with benefit schedules established by contract.

40.72(10) (10) Each insured state employee, and each insured employee to whom this subsection applies by an election under s. 40.70 (3), who is under 70 years of age, or 65 years of age if retired, shall be provided an amount of group life insurance in addition to that provided under sub. (1) equal to 100 percent of the employee’s earnings rounded to the next higher $1,000, if earnings are not in even $1,000 increments. The employee may cancel, in accord with the procedures specified by s. 40.70, the amount of additional insurance provided under this subsection.

40.72 History History: 1981 c. 96, 386; 1985 a. 332 s. 251 (3); 1989 a. 182; 1991 a. 152; 1993 a. 490; 2013 a. 20.

40.72 Cross-reference Cross-reference: See also ss. ETF 60.31 and 60.60, Wis. adm. code.

40.73 40.73 Death benefits.

40.73(1) (1) The amount of the Wisconsin retirement system death benefit shall be:

40.73(1)(a) (a) Upon the death of a participant, other than an annuitant or a participating employee, the sum of the additional and employee required contribution accumulations credited to the participant’s account on the beneficiary annuity effective date or, in the case of a lump sum payment, the first day of the month in which the death benefit is approved. In addition:

40.73(1)(a)1. 1. For teacher participants who were members of the state teachers retirement system or the Milwaukee teachers retirement fund on June 30, 1966, the amount shall be increased by the employer contribution accumulation credited to the participant’s account on or prior to June 30, 1973, plus interest at the effective rate subsequently credited to the accumulations.

40.73(1)(a)2. 2. For participants who were participants of the Wisconsin retirement fund on or prior to December 31, 1965, the amount shall be increased by the employer contribution accumulation credited to the participant’s account on December 31, 1965, plus interest at the effective rate subsequently credited to the accumulations.

40.73(1)(am) (am) Upon the death of a participating employee, except as otherwise provided by par. (c), the sum of all of the following accumulations, including any interest credited to the accumulations, that are credited to the participant’s account on the beneficiary annuity effective date or, in the case of a lump sum payment, the first day of the month in which the death benefit is approved: