TITLE 29

State Government

Public Officers and Employees

CHAPTER 56. PENSIONS FOR MEMBERS OF THE STATE JUDICIARY


As used in this chapter:

(1) "Board" shall mean the Board of Pension Trustees established by § 8308 of this title.

(2) "Closed plan" shall mean the eligibility and benefit pensions of this chapter in effect on June 30, 1980.

(3) "Final average compensation" shall mean the member's average annual compensation during his or her highest paid 3 years, comprised of 3 periods of 12 consecutive months, for service as a judge, or the average annual compensation during the period of his or her service as a judge if such period is less than 3 years.

(4) The clause "for which he or she is eligible under the Federal Social Security Act" shall mean the old age insurance benefit or the disability insurance benefit for which an individual is or will be eligible by virtue of age and his or her wage credits under the Federal Social Security Act, based on his or her final average compensation and the Federal Social Security Act in effect when the individual ceased to be a judge and computed in accordance with rules and regulations approved by the Board, regardless of any other factors such as, without limitation, whether the judge has made application for social security benefits or is subsequently employed.

(5) "Member" shall mean an individual who accepts the provisions of this chapter while a member of the state judiciary.

(6) "Service" shall mean, for an individual:

a. Employment as a member of the state judiciary; and

b. Years of service as an "employee" as defined in § 5501(f)(1) and (3) of this title, excluding service as an elected official. It shall not include service for which the employee has received the refund provided by § 5523(b) of this title, unless such refund is first repaid with interest at a rate determined by the Board; and

c. Employment with the Municipal Court for the City of Wilmington prior to January 1998 if the individual is subsequently employed as a member of the state judiciary. An individual may receive credit for such previous service upon payment to the Fund, on or before the date of issuance of the individual's first benefit check or not later than March 23, 2003 (whichever is later), of a single lump sum payment equal to the actuarial value of the pension benefits to be derived from such service credits computed on the basis of actuarial assumptions approved by the Board and the individual's attained age and final average compensation.

(7) "State judiciary" means the judges mentioned in Article IV, § 2, of the Constitution of Delaware, and any other judge of a court of record who:

a. Is appointed by the Governor and confirmed by the Senate for a term of 12 years; and

b. Receives his or her entire remuneration as judge in the form of a salary paid by the State; and

c. Is by law during this tenure of office either prohibited from practicing law, or else prohibited from engaging in any other gainful occupation.

62 Del. Laws, c. 415, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 476, § 4; 74 Del. Laws, c. 8, § 1; 75 Del. Laws, c. 134, § 1; 79 Del. Laws, c. 140, § 1; 79 Del. Laws, c. 174, § 1.;

(a) There shall be established a State Judiciary Retirement Fund, hereinafter referred to as "Fund." Each member who elects or who has elected the provisions of this chapter and:

(1) Who was first appointed to the state judiciary prior to July 1, 1980, and is a member covered by the closed plan, shall contribute $500 to the Fund each year for the first 25 years of service; or

(2) Who is a member covered by the revised plan, shall contribute to the Fund each year for the first 24 years of service an amount equal to 3% of annual compensation in excess of $6,000 up to the Social Security wage base, and 5% of total compensation in excess of the Social Security wage base. In no event shall total compensation during any calendar year in excess of $6,000 be exempt from contributions.

Effective July 1, 1997, employee pension contributions made pursuant to this section shall not be subject to adjustment or recovery after the expiration of 3 full calendar years from December 31 of the year in which the contributions were made unless no contributions were paid during that calendar year.

(b) The Board of Pension Trustees shall invest and accumulate the contributions made to the Fund and shall pay all pensions under this chapter from the Fund. If at any time there shall be insufficient money in the Fund for the purposes of this chapter, the Secretary of Finance shall transfer funds from the General Fund to make up any such deficiency. Subject to Internal Revenue Code § 401(a)(24) [26 U.S.C. § 401(a)(24)], the assets of the Fund will be commingled in the Delaware Public Employees' Retirement System as provided for by § 8308 of this title. The assets of the Fund are held in trust and may not be used for or diverted to any purpose other than for the exclusive benefit of the employees and their beneficiaries.

(c) The benefit provisions of this chapter shall be divided into 2 plans, the closed plan and the revised plan. Members of the state judiciary first appointed before July 1, 1980, who do not elect, as provided in § 5605 of this title, to accept the revised plan shall be members covered by the closed plan even through reappointments to the state judiciary. All other members of the state judiciary who accept the provisions of this chapter, as provided in § 5605 of this title, shall be members covered by the revised plan.

29 Del. C. 1953, § 5602; 50 Del. Laws, c. 119, § 1; 50 Del. Laws, c. 554, § 1; 56 Del. Laws, c. 198, § 1; 57 Del. Laws, c. 741, §§ 39B, 39C; 60 Del. Laws, c. 649, § 1; 62 Del. Laws, c. 415, §§ 2, 3; 71 Del. Laws, c. 121, §§ 6, 7; 71 Del. Laws, c. 165, § 5; 71 Del. Laws, c. 354, § 38; 76 Del. Laws, c. 279, § 6.;

(a) Each member covered by the closed plan shall, upon the member's involuntary retirement from the state judiciary after serving at least 12 years as a judge, including all years of judicial service in Delaware of the retiring judge both prior and subsequent to the member becoming a member of the state judiciary and both prior and subsequent to the member filing a declaration of acceptance of the provisions of this chapter in accordance with § 5605 of this title, receive an annual pension from the State, payable to the member in equal monthly installments, commencing when the member has attained the age of 65 years, or commencing upon involuntary retirement in case the member has reached the age of 65 years prior to such retirement, and continuing during the remainder of the member's lifetime.

(b) Each member covered by the closed plan shall, upon the member's retirement from the state judiciary, whether voluntary or involuntary, after serving at least 24 years as a judge or who is involuntarily retired after having served 22 years as a judge, including all years of judicial service in Delaware of the retiring judge both prior and subsequent to the member becoming a member of the state judiciary and both prior and subsequent to the member filing a declaration of acceptance of this chapter in accordance with § 5605 of this title, or after having reached the age of 65 years and having served at least 12 years as a judge, receive an annual pension from the State, payable to the member in equal monthly installments, commencing upon the date of retirement and continuing during the remainder of the member's lifetime.

(c) If a member of the state judiciary shall develop a permanent physical or mental disability, while in office, the member shall, from and after the ascertainment of such disability in the manner hereafter set forth, receive an annual pension from the State, payable in equal monthly installments during the remainder of the member's lifetime. A member of the state judiciary may be deemed to have a permanent physical or mental disability and unable to perform the duties of the member's office after the Board of Pension Trustees have considered a certificate to that effect signed by the Chief Justice of the Supreme Court or, if the Chief Justice shall be the subject of such certificate, by the senior Justice of the Supreme Court and by 3 persons duly licensed to practice medicine or surgery in this State and who have been actively engaged in such practice in this State for at least 10 years immediately preceding the signing of such certificate; said 3 persons to be previously designated by the Trustees.

(d) Whenever a member covered by the closed plan shall die while in office or shall die after retirement on a pension payable under this chapter or shall die during a period of involuntary retirement after having served at least 12 years as a judge but before having reached the age of 65, an annual pension shall be paid in the following contingencies:

(1) If such judge is survived by a widow or widower but not by a dependent child, there shall be paid to such widow or widower an annual pension as long as the widow or widower lives and remains unmarried; or

(2) If such judge is survived by a widow or widower and a dependent child or children, there shall be paid to such widow or widower an annual pension as long as the widow or widower lives and remains unmarried, but if the widow or widower should die or remarry before the last of the said dependent children shall become independent as provided in this section or shall die, whichever first occurs, the said annual pension which would have been payable to the widow or widower but for the widow's or widower's death or remarriage shall be divided into as many shares as there are dependent children then surviving and a said share shall be paid to or on behalf of each child annually until the child becomes independent or dies, whichever first occurs; or

(3) If such judge leaves no surviving widow or widower but leaves a surviving dependent child or children, the annual pension which would otherwise be paid to a surviving widow or widower shall be divided into as many shares as there are dependent children then surviving, and a said share shall be paid to or on behalf of each child annually until the said child becomes independent or dies, whichever first occurs.

As used in this section, the term "dependent child" means an unmarried child, including stepchild or an adopted child, who is under the age of 18 years.

(e) For the purpose of computing service under this chapter, a judge shall be deemed to commence serving as a judge on the date the judge's commission is issued by the Governor.

(f) [Repealed.]

29 Del. C. 1953, § 5603; 50 Del. Laws, c. 119, § 1; 50 Del. Laws, c. 533, § 1; 50 Del. Laws, c. 554, § 2; 53 Del. Laws, c. 242, § 1; 55 Del. Laws, c. 428, § 1; 56 Del. Laws, c. 198, § 2; 57 Del. Laws, c. 741, §§ 39B, 39C; 58 Del. Laws, c. 527, § 4; 62 Del. Laws, c. 415, §§ 7-10; 64 Del. Laws, c. 154, § 1; 64 Del. Laws, c. 309, § 1; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 66, § 1; 78 Del. Laws, c. 179, §§ 294-296.;

For members covered by the closed plan:

(1) The amount of the annual pension shall be determined by first arriving at the retiring member's average annual compensation during the member's highest paid 3 years comprised of 3 periods of 12 consecutive months for the member's services as a judge or, in the event a judge becomes entitled to a pension prior to having served 3 years as a judge, then the average annual compensation during the member's entire term for the member's services as a judge and multiplying the average annual compensation so computed by 3% and then multiplying the product thus obtained by the total number of years of service as a judge (including fractions of years), including all years of service of the retiring judge both prior and subsequent to becoming a member of the state judiciary and both prior and subsequent to filing a declaration of acceptance of the provisions of this chapter in accordance with § 5605 of this title.

(2)a. Anything to the contrary in this subsection notwithstanding, the maximum pension which a retired judge shall receive is three quarters of the average annual compensation during the retired judge's highest paid 3 years comprised of 3 periods of 12 consecutive months. Anything to the contrary in this subsection notwithstanding, the minimum pension which a retired judge shall receive is one half of the retired judge's average annual compensation during the judge's highest paid 3 years comprised of 3 periods of 12 consecutive months, or, in the event a judge retires before the judge has served 3 years as a judge, then one half the average annual compensation during such retired judge's entire term of service.

b. Anything to the contrary in this section notwithstanding, the pension of a retired judge who has served more than 25 years and who retires between January 1, 1988, and December 31, 1989, shall be three fourths of his or her average annual compensation to be computed based on a period equal to the retired judge's highest paid 60 consecutive months reduced by 1 month for each month of service as a judge in excess of 25 years up to a maximum reduction of 24 months. In no case shall a retired judge's average annual compensation as calculated under this paragraph be based on a period of less than 36 months.

(3) The amount of the annual pension paid to any widow or dependent children of a deceased member of the state judiciary shall be an amount equal to two thirds of the annual pension such member of the state judiciary, if the member dies while in office, would have been entitled to receive if the member had retired for disability on the day of the member's death or shall be an amount equal to two thirds of the pension of the deceased member of the state judiciary if the member died after having retired on pension. The amount of an annual pension paid to any widow or dependent children of a deceased member of the state judiciary who shall die during a period of involuntary retirement after having served at least 12 years as a judge, but before having reached age 65, shall be an amount equal to two thirds of the annual pension such member of the state judiciary would have been entitled to receive if the member had lived to the age of 65. Such pensions shall be paid in equal monthly installments.

29 Del. C. 1953, § 5604; 50 Del. Laws, c. 119, § 1; 50 Del. Laws, c. 533, § 2; 53 Del. Laws, c. 242, § 2; 56 Del. Laws, c. 198, § 3; 62 Del. Laws, c. 415, § 11; 66 Del. Laws, c. 156, §§ 1, 2; 66 Del. Laws, c. 346, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 476, §§ 5, 6; 77 Del. Laws, c. 66, § 2.;

Retirement from the state judiciary shall be deemed to be involuntary if, upon expiration of the judge's term of office, a judge shall fail to be reappointed and confirmed, unless the judge shall have declined reappointment.

29 Del. C. 1953, § 5605; 50 Del. Laws, c. 119, § 1; 70 Del. Laws, c. 186, § 1.;

(a) Each new member of the state judiciary, whether by appointment and confirmation or as a result of any provision of this chapter, may accept the provisions of this chapter by: (1) Written declaration to that effect within 30 days following the member's becoming a member of the state judiciary or (2) through the authorization, heretofore or hereafter accomplished, by said member to permit deductions for the contributions provided in § 5601 of this title. The declaration of acceptance shall be filed in the office of the Secretary of State; provided, however, that in the event the member accepts the provisions of this chapter through authorization of deductions for contributions, the member shall thereafter file a written declaration with the Secretary of State. Upon filing of such written declaration by a member of the state judiciary or upon authorization of deductions for contributions, whichever first occurs, the benefits of this chapter shall be available to the member. Any judge who was, prior to November 8, 1955, a member of the state judiciary, who has not already done so, may file a written declaration of acceptance of the provisions of this chapter within 30 days after November 8, 1955. A declaration of acceptance, or authorization to permit deductions for the contributions provided in § 5601 of this title, heretofore or hereafter accomplished, by a member first appointed on or after July 1, 1980, shall cover such member under the revised plan.

(b) A member first appointed before July 1, 1980, may elect to be covered by the revised plan by filing a declaration of acceptance in the office of the Secretary of State.

(c) Any declaration of acceptance of this chapter or authorization of deductions for the contributions provided in § 5601 of this title as provided in subsection (a) of this section shall constitute an authorization and direction by the member of the state judiciary making the same that if a certificate of permanent physical or mental disability of such member shall be thereafter filed as provided for in § 5602(c) of this title, such certificate shall, without any further act by such member, constitute a resignation by such member, effective immediately after the filing of such certificate. A declaration of acceptance shall also authorize deductions for the contributions provided for in § 5601 of this title.

(d) Any declaration filed or authorization made pursuant to this section shall be irrevocable.

29 Del. C. 1953, § 5606; 50 Del. Laws, c. 119, § 1; 50 Del. Laws, c. 533, § 3; 62 Del. Laws, c. 415, §§ 12-14; 63 Del. Laws, c. 330, § 1; 64 Del. Laws, c. 202, § 1; 66 Del. Laws, c. 123, §§ 1-3; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 365, § 4; 74 Del. Laws, c. 8, § 2; 78 Del. Laws, c. 179, § 297.;

(a) A service pension, disability pension, survivor's pension, death benefit or withdrawal benefit shall be paid only upon the filing of an application in a form prescribed by the Board. A monthly benefit shall not be payable for any month earlier than 2nd month preceding the date on which the application for such benefit is filed.

(b) The Board may require any member or eligible survivor to furnish such information as may be required for the determination of benefits under this chapter, or to authorize the Board to procure such information including, but not limited to, information regarding benefits pursuant to the Federal Social Security Act. The Board may withhold payment of any pension under this chapter whenever the determination of such pension is dependent upon such information and the member or eligible survivor does not cooperate in the furnishing or procuring thereof.

(c) Upon receipt of any form pursuant to subsection (a) of this section, the Board shall consider the retirement and if they find that benefits are due under this chapter they shall notify the State Treasurer who shall make payments of benefits under this chapter out of the State Judiciary Retirement Fund or out of funds transferred for the purpose from the General Fund, as provided in § 5601 of this title.

(d) A service pension, disability pension, or survivor's pension applied for under this act may be paid into a Miller Trust Bank account, pursuant to the creation of an irrevocable income assignment trust ("Miller Trust"), established on behalf of an eligible pensioner or survivor covered under this chapter who is a person with disabilities, so long as the Miller Trust is established consistent with the laws of the State of Delaware, the laws of the United States and in accordance with the rules and regulations of the local and federal agencies responsible for administering assistance programs for persons with disabilities.

29 Del. C. 1953, § 5607; 50 Del. Laws, c. 119, § 1; 50 Del. Laws, c. 554, §§ 3, 4; 57 Del. Laws, c. 741, §§ 39B, 39C; 62 Del. Laws, c. 415, § 15; 77 Del. Laws, c. 408, § 2.;

Any benefits available to any judge under this chapter shall immediately terminate upon the judge's appointment to and acceptance of any judicial office under state law.

29 Del. C. 1953, § 5608; 50 Del. Laws, c. 119, § 1; 55 Del. Laws, c. 428, § 2; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 66, § 3.;

(a) Upon the death of a member, or if a survivor's pension is payable upon such death, when such pension ceases to be payable, there shall be paid to the designated beneficiary or, in the absence of a designated beneficiary, to the estate of the member, a lump sum equal to the excess, if any, of the accumulated member contributions over the aggregate of all pension payments made. Such contributions shall exclude interest for members covered by the closed plan, and include interest for members covered by the revised plan.

(b) Upon the withdrawal from service of a member who is not eligible for a service or disability pension, his or her accumulated contributions without interest if covered by the closed plan, or with interest if covered by the revised plan, shall be paid to him or her.

29 Del. C. 1953, § 5609; 50 Del. Laws, c. 119, § 1; 62 Del. Laws, c. 415, § 16.;

(a) No judge, while serving as a judge, shall be entitled to receive any other pension:

(1) Payable by the State under any law of the State,

(2) For which the judge would otherwise be eligible because of the judge's prior service as an employee, officer or elected or appointed official.

Upon the judge's retirement or death, the judge or the person(s) entitled to survivor's benefits provided under this chapter shall be entitled to receive the pension benefits provided under this chapter as well as any other pension benefits for which the judge or the person(s) entitled to survivor's benefits is eligible under any other pension plan payable by the State.

(b) Within 6 months after July 7, 1998, any judge who withdrew his or her contributions from any other pension plan payable by the State, shall be entitled to repay the contributions, with interest at a rate to be determined by the Board. Repayment in accordance with this subsection shall restore all pension benefits for which the judge would have been eligible under the other pension plan payable by the State had the judge not withdrawn his or her contributions.

(c) Nothing contained in this chapter shall prevent any judge from participating on the same basis as other state employees in the social security program except that federal social security payments to which a judge may become entitled shall not be deducted from any pension payments made under this chapter.

29 Del. C. 1953, § 5610; 50 Del. Laws, c. 554, § 5; 71 Del. Laws, c. 365, § 1.;

(a)(1) Any judge retired from a statutorily created court and receiving a judicial pension may be designated by the Chief Justice of the Supreme Court to perform such judicial duties in any court where such retired judge could serve if such retired judge still held the judicial position from which the judge retired; provided, however, that such retired judge assents to such designation and provided further that such retired judge is not actively engaged in the practice of law.

(2) Any justice, judge, chancellor or vice chancellor who is retired and receiving a judicial pension may be designated by the Chief Justice of the Supreme Court pursuant to a constitutional or statutory authority to sit temporarily in the court from which the justice, judge, chancellor or vice chancellor retired or in any other court to which the justice, judge, chancellor or vice chancellor could be designated under the Constitution and statutes of the State if the justice, judge, chancellor or vice chancellor still held the judicial position from which the justice, judge, chancellor or vice chancellor retired and if the retired justice, judge, chancellor or vice chancellor assents to such designation, and is not actively engaged in the practice of law. However, no former justice, judge, chancellor or vice chancellor shall be designated to sit in the Supreme Court except temporarily to fill up the number of that Court to the required quorum.

(b) Any retired justice, judge, chancellor or vice chancellor accepting an active duty designation pursuant to the constitutional or statutory authorization shall be compensated on a per diem basis of $250 per day, but in no event shall the total compensation received on a per diem basis when added to the retirement pay exceed the then current annual salary of the judicial position from which such justice, judge, chancellor or vice chancellor has retired. In addition, each retired justice, judge, chancellor or vice chancellor so serving shall receive reimbursement for expenses for travel or secretarial services necessarily incurred for the performance of such active duty.

29 Del. C. 1953, § 5611; 56 Del. Laws, c. 198, § 4; 63 Del. Laws, c. 241, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 94, § 53.;

(a) On and after July 1, 1972, no pension provided under the closed plan which has been in effect for 3 years shall be subject to adjustment. This provision shall not apply to adjustments of pensions required to implement subsection (b) of this section.

(b) Effective September 1, 1972, the amount of any pension in effect on July 1, 1969, shall be the greater of: (1) The monthly pension rate paid in July, 1969, or (2) the recalculated amount determined as a result of audits made between May, 1971, and June 30, 1972, inclusive of any increases provided between July 1, 1969, and June 30, 1972, provided that the minimum pension payable for any month after July, 1969, shall be the monthly pension rate paid in July, 1969.

(c) Any pension overpayments discovered as a result of audits made between May, 1971, and June 30, 1972, shall not be subject to recovery.

29 Del. C. 1953, § 5612; 58 Del. Laws, c. 527, § 4; 62 Del. Laws, c. 415, § 17.;

(a) A member covered by the revised plan shall become eligible to receive a pension who has:

(1) Completed 12 years of service as a judge, and has attained age 62;

(2) Completed 24 years of service; or

(3) Been involuntarily retired after having served 22 years as a judge.

(b) A member covered by the revised plan who has completed 12 years of service as a judge shall have a vested right to a pension. Such right shall be forfeited upon his or her application for a refund of his or her accumulated contributions.

(c) If a member of the state judiciary shall develop a permanent physical or mental disability, while in office, the member shall, from and after the ascertainment of such disability in the manner hereafter set forth, receive an annual pension from the State, payable in equal monthly installments during the remainder of the member's lifetime. A member of the state judiciary may be deemed to have a permanent physical or mental disability and unable to perform the duties of the member's office after the Board of Pension Trustees has considered a certificate to that effect signed by the Chief Justice of the Supreme Court, or if the Chief Justice shall be the subject of such certificate, by the senior Justice of the Supreme Court, and by 3 persons duly licensed to practice medicine or surgery in this State and who have been actively engaged in such practice in this State for at least 10 years immediately preceding the signing of such certificate; said 3 persons to be previously designated by the Trustees.

62 Del. Laws, c. 415, § 4; 64 Del. Laws, c. 199, § 1; 64 Del. Laws, c. 309, § 2; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 134, § 2; 78 Del. Laws, c. 179, §§ 298-300.;

Subject to the provisions of subdivision (2) of this section:

(1) The amount of the annual pension or disability pension payable to a member under the revised plan shall be the sum of 1/24 of final average compensation multiplied by years of service as a judge up to 12 years inclusive, plus 1/48 of final average compensation multiplied by years of service as a judge from 13 to 24 years inclusive. Disability pensions will be computed on the basis of actual service as a judge or 12 years of service as a judge, whichever is greater.

(2) For a member first appointed before July 1, 1980, who accepts the revised plan, as provided in § 5605 of this title, the pension payable under the revised plan shall be the greater of the pension computed in accordance with subdivision (1) of this section or 3% of final average compensation multiplied by years of service as a judge subject to a minimum pension of 50% of final average compensation and a maximum of 75% of final average compensation.

(3)a. Notwithstanding provisions of this section to the contrary, a member may elect to have his or her service or disability pension, computed under this section, reduced by 2%, thereby providing a survivor's pension equal to two-thirds of such reduced amount to their eligible survivor or survivors at the time of the member's death. This election must be made in a form approved by the Board, filed prior to the issuance of the member's first benefit check, and shall be irrevocable.

b. Notwithstanding the provisions of this section to the contrary, an individual receiving a service or disability pension which was effective prior to July 1, 2001, or an individual with a vested right to a service pension, may elect to have his or her service or disability pension reduced by 2%, thereby providing a survivor's pension equal to two-thirds of such reduced amount to his or her eligible survivor or survivors at the time of his or her death. This election must be made in a form approved by the Board, filed prior to December 15, 2001, to be effective January 1, 2002, for the individual receiving a service or disability pension on July 1, 2001, or, in the case of an individual with a vested right to a service pension, filed prior to the issuance of the individual's first pension check.

62 Del. Laws, c. 415, § 5; 70 Del. Laws, c. 524, § 11; 73 Del. Laws, c. 154, § 1.;

Subject to the provisions of paragraph (2) of this section:

(1) The amount of the annual pension or disability pension payable to a member under the revised plan shall be the sum of 1/24 of final average compensation multiplied by years of service as a judge up to 12 years inclusive, plus 1/48 of final average compensation multiplied by years of service as a judge from 13 to 24 years inclusive. Disability pensions will be computed on the basis of actual service as a judge or 12 years of service as a judge, whichever is greater.

(2) For a member first appointed before July 1, 1980, who accepts the revised plan, as provided in § 5605 of this title, the pension payable under the revised plan shall be the greater of the pension computed in accordance with subdivision (1) of this section or 3% of final average compensation multiplied by years of service as a judge subject to a minimum pension of 50% of final average compensation and a maximum of 75% of final average compensation.

(3)a. Notwithstanding provisions of this section to the contrary, a member may elect to have his or her service or disability pension, computed under this section, reduced by 2%, thereby providing a survivor's pension equal to two-thirds of such reduced amount to their eligible survivor or survivors at the time of the member's death. This election must be made in a form approved by the Board, filed prior to the issuance of the member's first benefit check, and shall be irrevocable.

b. Notwithstanding the provisions of this section to the contrary, an individual receiving a service or disability pension which was effective prior to July 1, 2001, or an individual with a vested right to a service pension, may elect to have his or her service or disability pension reduced by 2%, thereby providing a survivor's pension equal to two-thirds of such reduced amount to his or her eligible survivor or survivors at the time of his or her death. This election must be made in a form approved by the Board, filed prior to December 15, 2001, to be effective January 1, 2002, for the individual receiving a service or disability pension on July 1, 2001, or, in the case of an individual with a vested right to a service pension, filed prior to the issuance of the individual's first pension check.

c. Notwithstanding provisions of this section to the contrary, a member may elect to have his or her service or disability pension, computed under this section, reduced by 3%, thereby providing a survivor's pension equal to 75% of such reduced amount to the member's eligible survivor or survivors at the time of the member's death. This election must be made in a form approved by the Board, filed prior to the issuance of the member's first benefit check, and shall be irrevocable.

d. Notwithstanding provisions of this section to the contrary, a member may elect to have his or her service or disability pension, computed under this section, reduced by 6%, thereby providing a survivor's pension equal to 100% of such reduced amount to the member's eligible survivor or survivors at the time of the member's death. This election must be made in a form approved by the Board, filed prior to the issuance of the member's first benefit check, and shall be irrevocable.

62 Del. Laws, c. 415, § 5; 70 Del. Laws, c. 524, § 11; 73 Del. Laws, c. 154, § 1; 79 Del. Laws, c. 315, § 3.;

(a) Upon the death during service of a member covered by the revised plan, a monthly survivor's pension shall be payable to the member's eligible survivor or survivors equal to two-thirds of the service pension for which the judge would have been eligible and computed on the basis of actual service to the date of death or 12 years, whichever is greater, and had elected the option provided under § 5613(3) of this title.

(b) Upon the death of a member covered by the revised plan and receiving a service or disability pension at the time of his or her death, a monthly survivor's pension shall be payable to his or her eligible survivor or survivor's equal to (i) one-half of such service or disability pension, or (ii) if such pension was computed under § 5613(3), two-thirds of such service or disability pension.

(c) Upon the death after retirement of a member covered by the revised plan, who has a vested right to a pension pursuant to § 5612(b) of this title, but who dies before reaching the age of 62, a monthly survivor's pension shall be payable beginning in the month during which the member would have reached the age of 62 in an amount equal to one half of the pension for which the judge would have been eligible at the age of 62.

(d) For the purpose of this section, the priority of eligible survivors of a member covered by the revised plan shall be as follows, provided that a member may change the priority of eligible survivors specified herein by designating his or her priority of eligible survivors on a form prescribed by the Board at the time of the member's death:

(1) The widow or widower, provided such person had been married to the deceased member for at least 1 year before the date of death; or

(2) If there is no eligible widow or eligible widower, a child (or with the survivor's pension divided among them in equal shares, all such children if there are more than 1), provided the child is unmarried and either:

a. Has not attained age 18;

b. Has attained age 18 but not age 22 and is attending school on a full-time basis; or

c. Has attained age 18 and has a permanent disability as the result of a disability which began before the child attained age 18; or

(3) If there is no eligible widow, eligible widower or eligible child, a dependent parent (or, with the survivor's pension divided between them in equal shares, both such parents if there are 2).

(e) The amount payable to a widow or widower who has not attained age 50 at the time the survivor's pension begins shall be actuarially reduced, in accordance with actuarial tables approved by the Board, for each month the survivor is under age 50 at such time. However, the actuarial reduction for any such widow or widower shall not apply for the period during which such widow or widower has in his or her care a son or daughter who is unmarried and either:

(1) Has not attained age 18;

(2) Has attained age 18 but not age 22 and is attending school on a full-time basis; or

(3) Has attained age 18 and has a permanent disability as the result of a disability which began before the child attained age 18.

(f) A parent shall be deemed to have been dependent on the deceased member if such individual was receiving at least one half of his or her support from the deceased member at the time of death.

(g) A survivor's pension shall begin with the month following the month in which the member dies. If payable to a widow, widower or parent, it shall cease with the month in which the survivor dies. If payable to a child, it shall cease with the month in which the child dies or fails to meet the conditions of eligibility in paragraph (2)(c) of this section.

62 Del. Laws, c. 415, § 6; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 524, § 12; 71 Del. Laws, c. 336, § 1; 73 Del. Laws, c. 154, §§ 2, 3; 78 Del. Laws, c. 179, § 301.;

(a) Upon the death during service of a member covered by the revised plan, a monthly survivor's pension shall be payable to the member's eligible survivor or survivors equal to two-thirds of the service pension for which the judge would have been eligible and computed on the basis of actual service to the date of death or 12 years, whichever is greater, and had elected the option provided under § 5613(3) of this title.

(b) Upon the death of a member covered by the revised plan and receiving a service or disability pension at the time of his or her death, a monthly survivor's pension shall be payable to his or her eligible survivor or survivor's equal to:

(1) One half of such service or disability pension; or

(2) If such pension was computed under § 5613(3) a. or b. of this title, 2/3 of such service or disability pension; or

(3) If such pension was computed under § 5613(3)c. of this title, 75% of such service or disability pension; or

(4) If such pension was computed under § 5613(3)d. of this title, 100% of such service or disability pension.

(c) Upon the death after retirement of a member covered by the revised plan, who has a vested right to a pension pursuant to § 5612(b) of this title, but who dies before reaching the age of 62, a monthly survivor's pension shall be payable beginning in the month during which the member would have reached the age of 62 in an amount equal to one half of the pension for which the judge would have been eligible at the age of 62.

(d) For the purpose of this section, the priority of eligible survivors of a member covered by the revised plan shall be as follows, provided that a member may change the priority of eligible survivors specified herein by designating his or her priority of eligible survivors on a form prescribed by the Board at the time of the member's death:

(1) The widow or widower, provided such person had been married to the deceased member for at least 1 year before the date of death; or

(2) If there is no eligible widow or eligible widower, a child (or with the survivor's pension divided among them in equal shares, all such children if there are more than 1), provided the child is unmarried and either:

a. Has not attained age 18;

b. Has attained age 18 but not age 22 and is attending school on a full-time basis; or

c. Has attained age 18 and has a permanent disability as the result of a disability which began before the child attained age 18; or

(3) If there is no eligible widow, eligible widower or eligible child, a dependent parent (or, with the survivor's pension divided between them in equal shares, both such parents if there are 2).

(e) The amount payable to a widow or widower who has not attained age 50 at the time the survivor's pension begins shall be actuarially reduced, in accordance with actuarial tables approved by the Board, for each month the survivor is under age 50 at such time. However, the actuarial reduction for any such widow or widower shall not apply for the period during which such widow or widower has in his or her care a son or daughter who is unmarried and either:

(1) Has not attained age 18;

(2) Has attained age 18 but not age 22 and is attending school on a full-time basis; or

(3) Has attained age 18 and has a permanent disability as the result of a disability which began before the child attained age 18.

(f) A parent shall be deemed to have been dependent on the deceased member if such individual was receiving at least one half of his or her support from the deceased member at the time of death.

(g) A survivor's pension shall begin with the month following the month in which the member dies. If payable to a widow, widower or parent, it shall cease with the month in which the survivor dies. If payable to a child, it shall cease with the month in which the child dies or fails to meet the conditions of eligibility in paragraph (2)(c) of this section.

62 Del. Laws, c. 415, § 6; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 524, § 12; 71 Del. Laws, c. 336, § 1; 73 Del. Laws, c. 154, §§ 2, 3; 78 Del. Laws, c. 179, § 301; 79 Del. Laws, c. 315, § 9.;

Benefits provided under the revised and closed plans shall be adjusted in the same manner as benefits provided under Chapter 55 of this title.

62 Del. Laws, c. 415, § 18; 63 Del. Laws, c. 443, § 1.;

(a) The actuary shall prepare an actuarial valuation of the assets and liabilities of the funds as of June 30, each year. On the basis of reasonable actuarial assumptions and tables approved by the Board, the actuary shall determine the normal cost required to meet the actuarial cost of current service and the unfunded actuarial accrued liability.

(b) The State's appropriation to the funds for the Fiscal Year 1994, and for each fiscal year thereafter, shall be the percentage of covered payroll approved by the Board on the basis of the most recent actuarial valuation, and shall equal the sum of the normal cost plus the payment required to implement the provisions of subsection (c) of this section plus the payment required to amortize the unfunded actuarial accrued liability over 40 years from July 1, 1981. The amortization payment shall be an amount computed as a level percentage of the prospective total covered payroll over the remainder of the amortization periods, with such prospective total covered payroll to be determined on the basis of a growth rate, as determined by the Board, compounded annually. Except as provided in subsection (c) of this section, all funds appropriated pursuant to this subsection shall be deposited into the Fund established by § 5601 of this title.

(c) In order to provide a fund for post retirement increases, the State shall include in its annual appropriation payments equal to 2.33% of covered payroll, subject to the limitations contained in § 5548 (a)(2) of this title. Beginning with the Fiscal Year 94 budget, .70% of covered payroll shall be appropriated; in Fiscal Year 95, 1.11% of covered payroll shall be appropriated; in Fiscal Year 96, 1.52% of covered payroll shall be appropriated; in fiscal year 97, 1.93% of covered payroll shall be appropriated; in Fiscal Year 98 and each fiscal year thereafter 2.33% of covered payroll shall be appropriated. Funds appropriated to implement this subsection shall be deposited into the Post Retirement Fund established by § 5548 of this title.

69 Del. Laws, c. 104, § 4; 78 Del. Laws, c. 116, § 5.;

Any monthly service or disability pension which became effective before January 1, 1979, and is payable on July 23, 1982, and any survivor pension based on a former service or disability pension that was effective prior to January 1, 1979, shall be increased effective July 1, 1982, in accordance with the following schedule:

Year Service or Disability Percent Increase in Pension

 Pension Becomes Effective       Effective 7/1/82   

Prior to 1971  31%    

1971  21%    

1972  19%    

1973  16%    

1974  10%    

After 1974  5%    

63 Del. Laws, c. 443, § 2.;

(a) Each participating employer, pursuant to the provisions of § 414(h)(2) of the United States Internal Revenue Code [26 U.S.C. § 414(h)(2)], shall pick up and pay the contributions which would otherwise be payable by the members under § 5601 of this title. The contributions so picked up shall be treated as employer contributions for purposes of determining the amounts of federal income taxes to withhold from the member's compensation.

(b) Member contributions picked up by the employer shall be paid from the same source of funds used for the payment of compensation to a member. A deduction shall be made from each member's compensation equal to the amount of the member's contributions picked up by the employer. This deduction, however, shall not reduce the member's compensation for purposes of computing benefits under the retirement system pursuant to this chapter.

(c) Member contributions shall be credited to a separate account within the member's individual account so that the amount contributed prior to the effective date for the pickup of member contributions may be distinguished from the amounts contributed on or after the effective date.

(d) The contributions, although designated as employee contributions, are being paid by the employer in lieu of the contributions by the employee. The employee will not be given the option of choosing to receive the contributed amounts directly instead of having them paid by the employer to the retirement system.

68 Del. Laws, c. 358, § 3.;

Benefits shall be due and payable under this chapter only to the extent provided in this chapter, and neither the State nor the State Judiciary Retirement Fund shall be liable for any amount in excess of such sums.

71 Del. Laws, c. 132, § 87.;

Except for orders of the Delaware Family Court for a sum certain payable on a periodic basis, the benefits provided by this chapter shall not be subject to attachment or execution and shall be payable only to the beneficiary designated and shall not be subject to assignment or transfer.

71 Del. Laws, c. 337, § 7.;

Funds appropriated to implement this section shall be deposited into the OPEB Fund as established by § 5281 of this title.

76 Del. Laws, c. 70, § 8.;

There shall be established a State Judiciary Retirement Fund, hereinafter referred to as "Fund," to which state appropriations and other employer contributions shall be deposited monthly and to which employee contributions shall be deposited upon deduction from the employee's paycheck and to which earnings on investments, any other contributions, gifts, donations, grants, refunds and reimbursements shall be deposited upon receipt and from which benefits shall be paid and fees and expenses authorized by the Board shall be paid. Subject to Internal Revenue Code § 401(a)(24) [26 U.S.C. § 401(a)(24)], the assets of the Fund will be commingled in the Delaware Public Employees' Retirement System as provided for by § 8308 of this title. The assets of the Fund are held in trust and may not be used for or diverted to any purpose other than for the exclusive benefit of the employees and their beneficiaries.

76 Del. Laws, c. 279, § 7.;