Court Rules Police Officer’s Widow Must Wait Until Her Late Husband’s Sixtieth Birthday to Collect a Survivor’s Pension

by Carolyn Welch Clifford

In a case of first impression, an Illinois Appellate Court recently determined that the surviving spouse of a former police officer who had separated from service but had remained a deferred pensioner at the time of his death was not entitled to draw surviving spouse benefits until the former police officer’s sixtieth birthday.

In Thornley v. Board of Trustees of the River Forest Police Pension Fund, 2022 IL App (1st) 210835, Michael Thornley began working for the River Forest Police Department in 1997. Michael married Carrie in 2004, and resigned from the police department in 2015 after 18 years of service. At the time of his resignation, he was a “deferred pensioner” with enough creditable service to qualify for a retirement pension at age sixty.

However, Michael died in 2018 before reaching sixty and without drawing a retirement benefit. If he had reached the age of sixty, he would have been eligible for a retirement pension benefit of 42.5% of his applicable pension salary.

After Michael’s death, Carrie applied for a surviving spouse benefit under Section 3-112 of the Illinois Pension Code (40 ILCS 5/3-112). The critical portion of Section 3-112(a) provides:

Carrie argued that the triggering event for payment of a pension benefit to her was the death of her husband and that she was entitled to begin receiving the benefit as of the date of his death. The Board, however, argued that Carrie was not entitled to begin drawing the survivor’s benefit until the date Michael would have been entitled to begin drawing his deferred retirement benefit: when he turned age sixty in December of 2032. Carrie appealed.

The court ultimately found that the triggering event for survivor benefits is not simply “upon the death” of the former police officer. Rather, the statute provides for survivor benefits “upon the death of a police officer entitled to a pension” and based upon the pension “to which the police officer was then entitled.” In this instance, the former officer was not entitled to a retirement pension at the date of his death. Rather, his retirement benefits were to begin in December 2032 when he turned sixty.

In short, the court agreed with the Board that the surviving spouse “inherits whatever [the deceased officer’s] pension rights were, whenever they were payable.” The court thus concluded that the Board’s interpretation of Section 3-112(a) was consistent with legislative intent to defer pension in these situations.

Furthermore, the court reviewed and dismissed as unpersuasive an opinion that had been issued by the Illinois Department of Insurance as an Advisory Opinion on December 14, 2018. In that opinion, the DOI misquoted the statute and concluded that the “plain meaning” of the statute entitled the surviving spouse to benefits immediately upon the death of the police officer.

Note that for a deferred firefighter’s surviving spouse, the language found in Section 4-114 (applicable to firefighters) is different from Section 3-112. Under the facts presented by the Thornley case, if a deferred Tier I former firefighter with 18 years of creditable service died prior to reaching age sixty, then his or her surviving spouse would receive a surviving spouse benefit of 54% of the monthly salary as of his or her last day in service which would be paid upon the death of the deferred former firefighter (40 ILCS 5/4-114(a)(1)).