40.08 Benefit assignments and corrections.

2,310 words·~11 min read·/wi/chapter-40/40-08-2

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

(1)Exemptions. The benefits payable to, or other rights and interests of, any member, beneficiary or distributee of any estate under any of the benefit plans administered by the department, including insurance payments, shall be exempt from any tax levied by the state or any subdivision of the state and shall not be assignable, either in law or equity, or be subject to execution, levy, attachment, garnishment or other legal process except as specifically provided in this section. The exemption from taxation under this section shall not apply with respect to any tax on income.

(1c)Withholding of annuity and certain benefit payments. Notwithstanding sub.

(1), any monthly annuity paid under s. 40.23 , 40.24 , 40.25

(1)or

(2), or 40.63 and any benefit paid under s. 40.62 or duty disability payment paid under s. 40.65 is subject to s. 767.75 . The board and any member or agent thereof and the department and any employee or agent thereof are immune from civil liability for any act or omission while performing official duties relating to withholding any payment pursuant to s. 767.75 .

(1g)Withholding of lump sum payments. Notwithstanding sub.

(1), any lump sum payment made under s. 40.23 , 40.24 , 40.25

(1)or

(2), or 40.63 is subject to s. 49.852 . The board and any member or agent thereof and the department and any employee or agent thereof are immune from civil liability for any act or omission while performing official duties relating to withholding any lump sum payment pursuant to s. 49.852 .

(1m)Division of benefits.

(a)Notwithstanding sub.

(1), a participant’s accumulated rights and benefits under the Wisconsin retirement system shall be divided pursuant to a qualified domestic relations order only if the order provides for a division as specified in this subsection.

(b)The creditable service and the value of the participant’s account that are subject to division on the decree date shall be equal to one of the following:

1. The creditable service and the dollar amounts credited to all parts of the participant’s account through the day before the decree date, if the participant is not an annuitant on the decree date.

2. The present value of the annuity being paid if the participant is an annuitant.

(c)The present value of the annuity specified in par.

(b)2. shall be computed in accordance with the actuarial tables then in effect and shall consider the number of remaining guaranteed payments, if any. If the participant is an annuitant who is not receiving an annuity from all parts of the participant’s accounts, then par.

(b)1. applies to those parts of the account from which the annuity is not being received.

(d)The amount computed under par.

(b)shall be divided between the participant and the alternate payee in the percentages specified in the qualified domestic relations order. The participant shall have no further right, interest or claim on that portion of the participant’s creditable service and account balances or annuity amount allocated to the alternate payee.

(e)The alternate payee share of the amount computed under par.

(b)shall be distributed to the alternate payee or, in the case of an individual adjudged mentally incompetent, to a named guardian under sub.

(9), as follows:

1. The creditable service and amounts computed under par.

(b)1. shall be transferred to a separate account in the name of the alternate payee.

2. Except as provided in subds. 3. and 4. , the control and ownership rights of the alternate payee over his or her share of the account shall be the same as if the alternate payee were a participant who had ceased to be a participating employee but had not applied for a benefit under s. 40.23 or 40.25 on the decree date or the date that the participant terminated covered employment, whichever is earlier.

3. If par.

(b)1. applies and the effective date of the alternate payee’s benefit is after the date that the participant would have met the age requirement for a retirement annuity under s. 40.23 , the benefits for the alternate payee shall be determined under s. 40.23 . The alternate payee’s benefits shall be computed using the participant’s final average earnings on the first day of the annual earnings period in which the alternate payee’s annuity is effective. If the effective date of the alternate payee’s benefit is before the date that the participant would have met the age requirement for a retirement annuity under s. 40.23 , the alternate payee’s benefits shall be determined under s. 40.25

(2).

4. An alternate payee, who elects an annuity option, may only elect among the options under s. 40.24 that provide payments that are calculated only on the basis of the age of the alternate payee.

(f)After division of the participant’s account under par.

(b), the account and any benefits payable shall be adjusted as follows:

1. If the participant is not an annuitant on the decree date, an amount equal to the total of the alternate payee share distributed under par.

(e), including creditable service, shall be subtracted from the participant’s account.

2. If the participant is an annuitant on the decree date, the annuity shall be recomputed using the total value of the participant’s account determined under par.

(b)reduced by the total of the alternate payee share transferred under par.

(e)1. , in accordance with the actuarial tables in effect and using the participant’s age on the decree date. The decree date shall be the effective date of recomputation. If the optional annuity form before division of the participant’s account under par.

(b)was not a joint and survivor annuity with the alternate payee as the named survivor, the same annuity option with no change in the remaining guarantee period, if any, shall be continued upon recomputation to the participant. The present value of the alternate payee’s share of the annuity after division shall be paid to the alternate payee as a straight life annuity based on the age of the alternate payee on the decree date. The alternate payee’s annuity shall have the same remaining guarantee period, if any, as the participant’s annuity. If the optional annuity form before division of the participant’s account under par.

(b)was a joint and survivor annuity with the alternate payee as the named survivor, the present value of the annuity after division shall be paid to both the participant and the alternate payee as a straight life annuity based upon their respective ages on the decree date. If the participant’s account is reestablished under s. 40.63

(10)after the decree date, the amounts and creditable service reestablished shall be reduced by an amount equal to the percentage of the alternate payee share computed under this subdivision.

(g)If par.

(b)1. applies, eligibility for benefit rights that are available only after attainment of a specified length of service shall be determined based on the service that would have been credited, if the account had not been divided under this subsection, to the participant’s account on the effective date of the participant’s benefit and on the effective date of the alternate payee’s benefit for purposes of determining the participant’s and alternate payee’s benefit rights, respectively. However, no creditable service may be added to the alternate payee’s account under this paragraph, and the participant shall not receive creditable service under this paragraph, for any service that has been transferred to the alternate payee’s account. This paragraph applies only if all eligibility requirements, other than length-of-service requirements, for the benefit rights being established have been met.

(h)Notwithstanding pars.

(b)to

(g), if the participant is both an annuitant and is receiving a benefit under s. 40.65 that is effective on or before the decree date, the adjustments specified in s. 40.65

(b)4. shall be computed as though the participant’s account had not been divided.

(i)The department, its employees, the fund and the board are immune from any liability for any act or omission under this subsection in accordance with a qualified domestic relations order and may not be required to take any action or make any notification as part of the exercise of ownership rights granted under this subsection.

(j)This subsection applies to qualified domestic relations orders issued on or after January 1, 1982, that provide for divisions of the accumulated rights and benefits of participants whose marriages have been terminated by a court on or after January 1, 1982.

1. Nothing in this subsection authorizes a court to revise or modify a judgment or order with respect to a final division of property under s. 767.61 , in contravention of s. 767.59

(b).

2. Notwithstanding subd. 1. , a court may revise or modify a judgment or order specified under subd. 1. for participants whose marriages were terminated by a court on or after January 1, 1982, and before April 28, 1990, but only with respect to providing for payment in accordance with a qualified domestic relations order of benefits under the Wisconsin retirement system that are already divided under the judgment or order.

(1r)Delinquent state tax obligations. Notwithstanding sub.

(1)and s. 40.01

(2), the department of revenue may attach any lump sum payment or monthly annuity paid under s. 40.23 , 40.24 , 40.25

(1)or

(2), or 40.63 to satisfy delinquent tax obligations. The board and any member or agent thereof and the department and any employee or agent thereof are immune from civil liability for any act or omission while performing official duties relating to withholding any payment under this subsection.

(1t)Payment of restitution for certain misconduct. Notwithstanding sub.

(1), the department may withhold amounts from any lump sum payment or annuity paid under s. 40.23 , 40.24 , 40.25

(1)or

(2), or 40.63 , as required by a restitution order under s. 973.20

(2). Notwithstanding s. 40.01

(2), the department shall deliver any amount withheld under this subsection in accordance with the restitution order issued under s. 973.20

(2). The board and any member or agent thereof and the department and any employee or agent thereof are immune from civil liability for any act or omission while performing official duties relating to withholding any payment under this subsection.

(1u)Deferred compensation plan assets. Notwithstanding sub.

(1), a participant’s accumulated assets held in an account in the deferred compensation plan established under subch. VII may be divided, in the manner provided by the deferred compensation board and under s. 40.80

(2r), pursuant to a domestic relations order, as defined under s. 40.80

(a).

(2)Insurance premiums.

(a)Insurance premiums shall be deducted from annuities for group insurance benefit plans as provided in s. 40.05 and, with the written consent of the annuitant, for premiums for group life and health insurance plans provided by the city of Milwaukee to former Milwaukee teachers if the annuity is sufficient.

(b)If permitted under a deferred compensation plan established under subch. VII , insurance premiums for health or long-term care insurance coverage for an eligible retired public safety officer may be deducted from an amount distributed under a deferred compensation plan and paid directly to an insurer.

(3)Waivers. Any participant, beneficiary, or distributee of any estate may waive, absolutely and without right of reconsideration or recovery, the right to or the payment of all or any portion of any benefit payable or to become payable under this chapter. The waiver shall be effective 30 days after it is received by the department or on the date specified in the waiver, if earlier. The waiver may be cancelled by the participant, beneficiary, or distributee in writing before the effective date.

(4)Retention of payments. Unless voluntarily repaid and except as limited by sub.

(10), the department may retain out of any annuity or benefit an amount as the department in its discretion may determine, for the purpose of reimbursing the appropriate benefit plan accounts for a balance due under s. 40.25

(5)or for any money paid, plus interest at the assumed rate, unless the department sets a different rate by rule, to any person or estate, through misrepresentation, fraud, or error. Upon the request of the department any employer shall withhold from any sum payable by the employer to any person or estate and remit to the department any amount, plus interest at the assumed rate, unless the department sets a different rate by rule, which the department paid to the person or estate through misrepresentation, fraud, or error. Any amount, plus interest at the assumed rate, unless the department sets a different rate by rule, not recovered by the department from the employer may be procured by the department by action brought against the person or estate.

(5)Employer error.

(a)Whenever any sum becomes due to the department from any recipient as the result of incorrect or incomplete reporting by an employer and the sum cannot be recovered from the recipient, then the employer shall be charged with the sum.

(b)Any amount determined to be due under this subsection shall be due with the next payment by the employer under s. 40.06 and shall be subject to the penalties and collection procedures provided in s. 40.06 if not paid when due.

(6)Refunds.

(a)Notwithstanding s. 20.913 , but subject to par.

(b), the department may refund any money paid in error to the fund by or on behalf of a person who is not a participant.

(b)The department may not refund any money paid into the fund by an employer, but shall by rule credit the money to the employer.