Sec. 348.2. Retroactive application of Chapter 710 of the Laws of 1989

(a) Where ordinary death benefits are payable pursuant to section 60 or 360 of the Retirement and Social Security Law on account of a death which occurred on or after August 7, 1987 and before July 24, 1989 an additional payment shall only be made pursuant to Chapter 710 if the beneficiary of benefits payable under Chapter 710 is the same beneficiary who received or was entitled to receive ordinary death benefits under prior law.

(b) In determining whether additional benefits are payable pursuant to Chapter 710 on account of a death which occurred on or after August 7, 1987 and before July 24, 1989 to a beneficiary who already received ordinary death benefit payments under section 60 or 360, and the amount thereof if any, the Retirement System shall compare the value of the ordinary death benefit already paid or payable with the amount that would be payable under the option election filed in connection with the decedent's application for disability retirement. In the case of Tier 2 members, the amount of post-retirement death benefits payable shall also be considered.

(c) The comparison described in subdivision (b) of this section, immediately above, shall be performed in the following manner:

(1) Where the member elected Option one, the initial value shall be compared to the death benefit payment. If the initial value is greater, the difference between the initial value and the death benefit payment shall be paid.

(2) Where the member elected a joint and survivor option or a “pop-up option”, the ordinary death benefit shall be divided by the beneficiary's unisex annuity value. If the annual option payment is greater, an annual allowance equal to the difference shall be paid.

(3) Where a five- or 10-year-certain option was elected, the procedure provided in subdivision (c) paragraph (2) should be followed, using a five- or 10-year-certain annuity value.

(d) Where the disability application was filed without prejudice to a service retirement application and the optional reserve was paid under the service retirement benefit, the Retirement System shall compare the disability benefit as provided under Chapter 710 with the service retirement benefit and pay the greater of the two amounts.