Explaining ESSA : A Proposal to Protect the Surviving Spouses of New York

New York surviving spouses are protected by the right of election and the Retirement Equity Act of 1984 (REACT). Although both cover retirement plan benefits, there is an unjust gap in these protections for the surviving spouses of retired New York public employees. These surviving spouses often learn of this unjust flaw soon after burying their spouses, when they are abruptly informed that they would receive no plan survivor benefits. The right of election is of no help, as there is nothing to elect against. REACT is of no help, because it does not apply to public employee plans. As a result, some of these surviving spouses are impoverished. This article explains how the proposed Equity for Surviving Spouses Act (ESSA) would bridge this unjust gap by incorporating into New York law the tried-and-true REACT approach that now protects the spouses of 100 million private employees. ESSA would entitle surviving spouses of New York public employees to a survivor retirement benefit at least equal to that of a joint and 50% survivor benefit form of the retiree’s benefit, unless the spouse has waived such benefit on a plan form