July 1, 1994

ATTORNEY GENERAL OPINION NO. 94- 85

Meredith Williams

Executive Secretary

Kansas Public Employees Retirement System

Capitol Tower, Suite 200

400 S.W. 8th

Topeka, Kansas 66603-3925

Re:	State Boards, Commissions and Authorities--Public Employees Retirement Systems; Provisions Affecting Systems Administered By KPERS Board of Trustees--Lump-Sum Death Benefit for Retirants

Synopsis:	Because the lump-sum death benefit payable pursuant to K.S.A. 1993 Supp. 74-
4989 is intended to be paid for the benefit of the retirant rather than an heir or beneficiary of the retirant, and K.S.A. 1993 Supp. 74-4989 does not provide that the lump-sum death benefit is payable to a beneficiary of the retirant, the lump-
sum death benefit is to be paid to the retirant. Cited herein: K.S.A. 1993 Supp. 12-5005; K.S.A. 20-2618; 59-1301; K.S.A. 1993 Supp. 74-4902; K.S.A. 74-
4923; K.S.A. 1993 Supp. 74-4989; L. 1982, ch. 319, sec. 2; L. 1983, ch. 254, sec. 18; L. 1992, ch. 321, secs. 10, 25, 27.

Dear Mr. Williams:

As executive secretary for the Kansas public employees retirement system (KPERS), you request our opinion regarding the manner in which the lump-sum death benefit payable under K.S.A. 1993 Supp. 74-4989 is to be paid.

K.S.A. 1993 Supp. 74-4989 provides:

"(a) Upon the death of a retirant, the board of trustees of [KPERS] shall pay a lump-sum death benefit which shall not exceed $4,000 for such retirant, less any amount payable for funeral benefits under the applicable provisions of any local police or fire pension plan, as defined by subsection (c) of K.S.A. 12-5001 and amendments thereto."

The statute does not designate to whom the benefit is to be paid. However, review of the purpose of the benefit provides insight as to who is to receive the benefit.

As originally enacted, the statute authorized the board of trustees of KPERS to pay an amount not exceeding $750 for reasonable funeral and burial expenses for such retirant. L. 1982, ch. 319, sec. 2. The amounts payable for such purposes under the federal social security act or under the applicable provisions of any local police or fire pension plan were to be deducted from the amount payable by KPERS. Id. In 1983, the legislature amended the benefit to a lump-sum death benefit, authorizing the use of the funds for purposes other than reasonable funeral and burial expenses. L. 1983, ch. 254, sec. 18. Although an express purpose for the amendment is not provided, it may have occurred so that the benefits payable under the statute could be used for the purposes other than payment of reasonable funeral and burial expenses. See Earnest v. Ruppenthal, 149 Kan. 636 (1939) ("A tombstone or monument to be erected at the grave of a deceased person is not a necessary item of funeral expense.") However, by continuing to provide that the amount of the benefit payable under the statute is to be off-set by the amount payable for reasonable funeral and burial expenses under provisions of any local police of fire pension plan, we believe that the legislature continued to intend that the benefit payable under the statute is paid for the benefit of the retirant rather than a beneficiary or heir of the retirant. Expenses of an appropriate funeral and an appropriate tombstone or marker are among the obligations payable from the proceeds of the estate of a decedent. See K.S.A. 59-1301.

K.S.A. 1993 Supp. 12-5005 regards special members of the Kansas police and firemen's retirement system (KP&F).

"Every pension or other benefit received by any special member pursuant to subsection (c) or (d) is hereby made and declared exempt from any tax of the state of Kansas or any political subdivision or taxing body of this state; shall not be subject to execution, garnishment, attachment or any other process or claim whatsoever, except such pension or benefit or accumulated contributions due and owing from the system to such special member are subject to decrees for child support or maintenance, or both, as provided in K.S.A. 60-1610 and amendments thereto; and shall be unassignable, except that within 30 days of the death of a retirant the lump-sum death benefit payable to a retirant pursuant to the provisions of K.S.A. 74-4989 and amendments thereto may be assignable to a funeral establishment providing funeral services to such retirant by the beneficiary of such retirant." K.S.A. 1993 Supp. 12-5005 (emphasis added).

Similar provisions are provided in K.S.A. 20-2618 (retirement system for justices and judges) and K.S.A. 74-4923 (KPERS). The provisions regarding assignment of the lump-sum death benefit payable pursuant to K.S.A. 1993 Supp. 74-4989 were added to the statutes in 1992. See L. 1992, ch. 321, secs. 10, 25, 27. We believe that these provisions provide continued indication of the legislative intent that the benefit payable under K.S.A. 74-4989 is for the benefit of the retirant rather than for the benefit of a beneficiary or heir of the retirant.

It has been asserted that the lump-sum death benefit payable under K.S.A. 1993 Supp. 74-4989 is payable to a beneficiary as defined in subsection (7) of K.S.A. 1993 Supp. 74-4902. However, the introductory provision of K.S.A. 1993 Supp. 74-4902 states that the definitions provided therein are applicable to "K.S.A. 74-4901 to 74-4929, inclusive, and amendments thereto, unless the context otherwise requires." Further, beneficiary is defined in K.S.A. 1993 Supp. 74-4902 as "any person or persons or estate named by a member to receive any benefits as provided for by this act." (Emphasis added.) The term acts is defined in subsection (2) of K.S.A. 1993 Supp. 74-
4902 as "K.S.A. 74-4901 to 74-4929, inclusive, and amendments thereto." Therefore, the definitions provided in K.S.A. 1993 Supp. 74-4902 are not applicable to K.S.A. 1993 Supp. 74-
4989.

Because the lump-sum death benefit payable pursuant to K.S.A. 1993 Supp. 74-4989 is intended to be paid for the benefit of the retirant rather than an heir or beneficiary of the retirant, and K.S.A. 1993 Supp. 74-4989 does not provide that the lump-sum death benefit is payable to a beneficiary of the retirant, the lump-sum death benefit is to be paid to the retirant.

Very truly yours,

Robert T. Stephan

Attorney General of Kansas

Richard D. Smith

Assistant Attorney General

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