Notwithstanding Sections 31765 and 31765.1, upon the death of any member covered under Section 31751 who was either eligible for retirement or would have been entitled to disability retirement but died prior to such retirement and who leaves a spouse, such surviving spouse may, in lieu of the death benefit provided for in Article 12 (commencing with Section 31780), elect to receive a retirement allowance equal to 60 percent of the amount to which the member would have been entitled had the member retired on the date of death with a retirement allowance not modified in accordance with one of the optional settlements specified in this article.

If there is an eligible spouse, in addition to the above, 20 percent of the allowance to which the member would have been entitled shall be paid to each of the member’s children. The maximum family benefit under this section shall be 100 percent of the amount to which the member would have been entitled had the member retired on the date of death with a retirement allowance not modified in accordance with one of the optional settlements specified in this article.

If there is no spouse eligible for the 60 percent allowance, but there is at least one eligible child, or if the spouse of the member dies either before or after the death of such member without either making such election or receiving any portion of the death benefit, and no part of the death benefit has been paid to any person, prior to the payment of any benefits, the legally appointed guardian of such child or children shall make the election herein provided for on behalf of such surviving child or children as the guardian’s judgment may appear in their interest and advantage and the election so made shall be binding and conclusive upon all parties in interest. If an election is made to receive the 60 percent allowance, the child, or children collectively, shall be entitled to 60 percent of the retirement allowance the member would have received.

As used in this section, “child” shall be as defined in Section 31760.11.

The provisions of this section also shall apply to the surviving spouse and children of any employee who dies as the result of injury or disease arising out of and in the course of employment prior to the first day of the calendar month when the employee normally would become a member.

The rights and privileges conferred by this section upon the surviving spouse and children of such deceased member or employee shall not be dependent upon whether they, or any of them, have been nominated by the deceased member or employee as the beneficiary of any benefits payable upon or by reason of death, but they shall be superior to, and shall supersede, the rights and claims of any other beneficiary so nominated.

(Added by Stats. 1980, Ch. 58.)