109ABEligible employee or retirement pensioner survived by one spouse and child not in the custody, care and control of the spouse

#### 109AB Eligible employee or retirement pensioner survived by one spouse and child not in the custody, care and control of the spouse (1) Where a person (in this section called the deceased person) who is an eligible employee or a retirement pensioner dies and is survived by one spouse and by an eligible child or eligible children, or a partially dependent child or partially dependent children, not in the custody, care and control of the spouse, benefit is only payable under Division 1, 2, 3 or 3A in accordance with this section. (2) The amount of spouse’s pension payable to the spouse must not exceed: (a) if the deceased person was, immediately before his or her death, an eligible employee who had not attained his or her maximum retiring age—the applicable percentage of the annual rate of the invalidity pension to which the deceased eligible employee would have been entitled under section 67 or 70 if he or she had not died, but had, on the day immediately following the date of his or her death, become entitled to invalidity pension under that section; or (b) if the deceased person was, immediately before his or her death, an eligible employee who had attained his or her maximum retiring age—the applicable percentage of the annual rate of the standard age retirement pension to which the deceased eligible employee would have been entitled under section 56 if he or she had not died, but had, on the day immediately following the date of his or her death, become entitled to standard age retirement pension under that section; or (c) if the deceased person was, immediately before his or her death, a retirement pensioner and had had a marital or couple relationship that had begun: (i) before he or she had become a retirement pensioner; or (ii) before he or she had turned 60; or (iii) not less than 3 years before the pensioner’s death; —the applicable percentage of the annual rate of pension payable to the retirement pensioner immediately before his or her death. (3) The applicable percentage mentioned in paragraphs (2)(a) and (b) is: (a) if there are no eligible children of the deceased person in the custody, care and control of the spouse—67%; or (b) if there is one such eligible child—78%; or (c) if there are 2 such eligible children—89%; or (d) if there are 3 or more such eligible children—100%. (3A) The applicable percentage mentioned in paragraph (2)(c) is the percentage worked out in accordance with the following table: ```html <table cellspacing="0" cellpadding="0" style="border-collapse:collapse"><thead><tr><td colspan="4" style="width:343.75pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Applicable percentage</span></p></td></tr><tr><td style="width:24.65pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Item</span></p></td><td style="width:166.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Number of eligible children in custody etc. of spouse</span></p></td><td style="width:60.05pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Category 1</span><br><span style="font-weight:bold">deceased pensioner</span></p></td><td style="width:60.25pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Category 2</span><br><span style="font-weight:bold">deceased pensioner</span></p></td></tr></thead><tbody><tr><td style="width:24.65pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>1</span></p></td><td style="width:166.4pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>If there are no eligible children of the deceased person in the custody, care and control of the spouse</span></p></td><td style="width:60.05pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>67%</span></p></td><td style="width:60.25pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>85%</span></p></td></tr><tr><td style="width:24.65pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>2</span></p></td><td style="width:166.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>If there is one eligible child of the deceased person in the custody, care and control of the spouse</span></p></td><td style="width:60.05pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>78%</span></p></td><td style="width:60.25pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>97%</span></p></td></tr><tr><td style="width:24.65pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>3</span></p></td><td style="width:166.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>If there are 2 eligible children of the deceased person in the custody, care and control of the spouse</span></p></td><td style="width:60.05pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>89%</span></p></td><td style="width:60.25pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>108%</span></p></td></tr><tr><td style="width:24.65pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>4</span></p></td><td style="width:166.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>If there are 3 or more eligible children of the deceased person in the custody, care and control of the spouse</span></p></td><td style="width:60.05pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>100%</span></p></td><td style="width:60.25pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>108%</span></p></td></tr></tbody></table> ``` (3B) If the deceased person: (a) was, immediately before his or her death, a retirement pensioner; and (b) had had a late short‑term marital or couple relationship with his or her spouse; the amount of the spouse’s pension payable to the spouse must not exceed such percentage of the annual rate of pension payable to the retirement pensioner immediately before his or her death as is determined by CSC. (3C) In making a determination under subsection (3B), CSC must take into consideration: (a) the extent to which spouse’s pension payable to the spouse of a deceased pensioner under Division 3 is reduced when the spouse and the deceased pensioner have been in a marital or couple relationship of the kind referred to in paragraph (3B)(b); and (b) whether one or more than one eligible child, or one or more than one partially dependent child, of the pensioner is or is not a child of the pensioner because of the late short‑term marital or couple relationship referred to in paragraph (3B)(b). (4) CSC must, having regard to: (a) the needs of the spouse; and (b) the respective needs of any eligible child or eligible children, or any partially dependent child or partially dependent children, of the deceased person; and (c) such other matters as CSC considers relevant; subject to the limitations set out in subsections (5), (5A) and (7), determine the part of a benefit to which the spouse is entitled under Division 1, 2, 3 or 3A that is attributable to each such child. (5) Benefit attributed under subsection (4) to an eligible child or eligible children of the deceased person not in the custody, care and control of the spouse must not exceed in the aggregate: (a) if the deceased person was, immediately before his or her death, an eligible employee who had not attained his or her maximum retiring age—the applicable percentage of the annual rate of the invalidity pension to which the deceased eligible employee would have been entitled under section 67 or 70 if he or she had not died, but had, on the day immediately following the date of his or her death, become entitled to invalidity pension under that section; or (b) if the deceased person was, immediately before his or her death, an eligible employee who had attained his or her maximum retiring age—the applicable percentage of the annual rate of the standard age retirement pension to which the deceased eligible employee would have been entitled under section 56 if he or she had not died, but had, on the day immediately following the date of his or her death, become entitled to standard age retirement pension under that section; or (c) if the deceased person was, immediately before his or her death, a retirement pensioner and had had a marital or couple relationship that had begun: (i) before he or she had become a retirement pensioner; or (ii) before he or she had turned 60; or (iii) not less than 3 years before the pensioner’s death; —the applicable percentage of the annual rate of pension payable to the retirement pensioner immediately before his or her death. (5A) If the deceased person: (a) was, immediately before his or her death, a retirement pensioner; and (b) had had a late short‑term marital or couple relationship with his or her spouse; benefit attributed under subsection (4) to the eligible child or eligible children of the deceased person not in the custody, care and control of the spouse must not exceed in the aggregate such proportion of the applicable percentage of the annual rate of pension payable to the retirement pensioner immediately before his or her death as is determined by CSC. (5B) In making a determination under subsection (4) or (5A), CSC must take into consideration: (a) the extent to which spouse’s pension payable to the spouse of a deceased pensioner under Division 3 is reduced when the spouse and the deceased pensioner have been in a marital or couple relationship of the kind referred to in paragraph (5A)(b); and (b) whether one or more than one eligible child of the pensioner is or is not a child of the pensioner because of the late short‑term marital or couple relationship referred to in paragraph (5A)(b). (6) The applicable percentage mentioned in paragraphs (5)(a) and (b) is: (a) if there is one eligible child not in the custody, care and control of the spouse—45%; or (b) if there are 2 such eligible children—80%; or (c) if there are 3 such eligible children—90%; or (d) if there are 4 or more such eligible children—100%. (6A) The applicable percentage mentioned in paragraph (5)(c) is the percentage worked out in accordance with the following table: ```html <table cellspacing="0" cellpadding="0" style="border-collapse:collapse"><thead><tr><td colspan="4" style="width:343.65pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Applicable percentage</span></p></td></tr><tr><td style="width:22.8pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Item</span></p></td><td style="width:182.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Number of eligible children not in custody etc. of spouse</span></p></td><td style="width:52.85pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Category 1</span><br><span style="font-weight:bold">deceased pensioner</span></p></td><td style="width:53.2pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Category 2</span><br><span style="font-weight:bold">deceased pensioner</span></p></td></tr></thead><tbody><tr><td style="width:22.8pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>1</span></p></td><td style="width:182.4pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>If there is one eligible child not in the custody, care and control of the spouse</span></p></td><td style="width:52.85pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>45%</span></p></td><td style="width:53.2pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>51%</span></p></td></tr><tr><td style="width:22.8pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>2</span></p></td><td style="width:182.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>If there are 2 eligible children not in the custody, care and control of the spouse</span></p></td><td style="width:52.85pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>80%</span></p></td><td style="width:53.2pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>92%</span></p></td></tr><tr><td style="width:22.8pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>3</span></p></td><td style="width:182.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>If there are 3 eligible children not in the custody, care and control of the spouse</span></p></td><td style="width:52.85pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>90%</span></p></td><td style="width:53.2pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>108%</span></p></td></tr><tr><td style="width:22.8pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>4</span></p></td><td style="width:182.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>If there are 4 or more eligible children not in the custody, care and control of the spouse</span></p></td><td style="width:52.85pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>100%</span></p></td><td style="width:53.2pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>108%</span></p></td></tr></tbody></table> ``` (7) Benefit attributed under subsection (4) to a partially dependent child or partially dependent children of the deceased person must not exceed in the aggregate the lesser of: (a) the annual rate of the regular maintenance payments being made, or required to be made by order of a court, in relation to the child or children by the deceased person immediately before his or her death; or (b) the maximum benefit that, under subsection (5) or (5A), could be attributed to the child or children if the child or children were an eligible child or eligible children, as the case may be, of the deceased person not in the custody, care and control of the spouse. (8) CSC must not determine that a part of spouse’s additional pension, being such pension mentioned in sections 89 and 93, is attributable to a partially dependent child or partially dependent children. (9) Where CSC makes a determination under subsection (4), the spouse may make any election under this Act in relation to the part of a benefit that, under the determination, is not attributable to a child or children (being a child or children not in the custody, care and control of the spouse) as if the part of the benefit were the whole of the benefit to which the spouse had become entitled. (10) Where a determination is made under subsection (4), CSC, having regard to the respective needs of the persons mentioned in that subsection and to such other matters as CSC considers relevant, may vary the determination from time to time. (11) A reference in subsection (2) to spouse’s pension does not include a reference to spouse’s additional pension mentioned in sections 89 and 93. (12) For the purposes of this section, in determining the needs of a spouse, disregard any need that results from an election made by the spouse under section 146E. (13) CSC must ensure that so much of a spouse’s pension as is commuted under section 146E is not attributed under this section to a child.