B-146090, AUG. 30, 1965, 45 COMP. GEN. 94

B-146090: Aug 30, 1965

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UPON THE TERMINATION OF HIS MARRIAGE BY ABSOLUTE DIVORCE IS NOT ENTITLED TO THE RESTORATION OF HIS FULL ANNUITY. SHE NO LONGER THE "SURVIVING WIFE" PRESCRIBED IN SECTION 821 (B) IS NOT ELIGIBLE TO RECEIVE A SURVIVOR'S ANNUITY. SHOULD THE ANNUITANT REMARRY THE WIFE TO WHOM HE WAS MARRIED ON THE DATE OF HIS RETIREMENT. UPON HIS DEATH THE WIFE BY VIRTUE OF THE REMARRIAGE IS THE "SURVIVING WIFE" OF THE DECEASED ANNUITANT AND HER RIGHT TO RECEIVE A SURVIVOR'S ANNUITY IS NOT DEFEATED BY REASON OF THE DIVORCE. REQUESTING OUR DECISION ON CERTAIN QUESTIONS WHICH HAVE ARISEN WITH REGARD TO THE EFFECT OF THE PARTICIPANTS' (ANNUITANTS-) DIVORCES ON THE PAYMENT OF ANNUITIES UNDER TITLE VIII OF THE FOREIGN SERVICE ACT OF 1946.

B-146090, AUG. 30, 1965, 45 COMP. GEN. 94

FOREIGN SERVICE - RETIREMENT - ANNUITY ELECTIONS FOR DEPENDENTS - DIVORCE A FOREIGN SERVICE OFFICER WHO AT THE TIME OF RETIREMENT ELECTS A REDUCED ANNUITY WITH SURVIVOR BENEFITS UNDER SECTION 821 (B) OF THE FOREIGN SERVICE ACT OF 1946 (22 U.S.C. 1076 (B) (, UPON THE TERMINATION OF HIS MARRIAGE BY ABSOLUTE DIVORCE IS NOT ENTITLED TO THE RESTORATION OF HIS FULL ANNUITY, THE ANNUITY ELECTION MADE UNDER SECTION 821 (B) BEING IRREVOCABLE NEITHER DIVORCE NOR DEATH OF A SPOUSE ENTITLES A PARTICIPANT TO PAYMENT OF THE FULL AMOUNT OF AN ANNUITY, AND SHOULD THE OFFICER PREDECEASE HIS FORMER SPOUSE, SHE NO LONGER THE "SURVIVING WIFE" PRESCRIBED IN SECTION 821 (B) IS NOT ELIGIBLE TO RECEIVE A SURVIVOR'S ANNUITY, HOWEVER, SHOULD THE ANNUITANT REMARRY THE WIFE TO WHOM HE WAS MARRIED ON THE DATE OF HIS RETIREMENT, UPON HIS DEATH THE WIFE BY VIRTUE OF THE REMARRIAGE IS THE "SURVIVING WIFE" OF THE DECEASED ANNUITANT AND HER RIGHT TO RECEIVE A SURVIVOR'S ANNUITY IS NOT DEFEATED BY REASON OF THE DIVORCE.

TO THE SECRETARY OF STATE, AUGUST 30, 1965:

WE REFER TO THE LETTER OF THE DEPUTY UNDER SECRETARY FOR ADMINISTRATION,DATED AUGUST 17, 1965, REQUESTING OUR DECISION ON CERTAIN QUESTIONS WHICH HAVE ARISEN WITH REGARD TO THE EFFECT OF THE PARTICIPANTS' (ANNUITANTS-) DIVORCES ON THE PAYMENT OF ANNUITIES UNDER TITLE VIII OF THE FOREIGN SERVICE ACT OF 1946, APPROVED AUGUST 13, 1946, CH. 957, 60 STAT. 1019, AS AMENDED, 22 U.S.C. 1061 ET SEQ., IN CASES INVOLVING PARTICIPANTS WHO HAVE ELECTED TO RECEIVE A REDUCED ANNUITY WITH SURVIVOR BENEFITS UNDER SECTION 821 (B) OF THAT ACT (22 U.S.C. 1076 (B) ).

THE FIRST QUESTION AND THE TWO CASES ON WHICH IT IS BASED ARE AS FOLLOWS: CASE A.

1. PARTICIPANT RETIRED ON SEPTEMBER 30, 1959.

2. ELECTED, AT THE TIME OF HIS RETIREMENT, TO RECEIVE A REDUCED ANNUITY WITHOUT RESTORATION PROVISION.

3. PARTICIPANT'S REDUCED ANNUITY $8,221.05.

4. ANNUITY PROVIDED FOR WIFE $2,445.09.

5. MARRIAGE TERMINATED BY ABSOLUTE DIVORCE ON SEPTEMBER 4, 1964.

6. PARTICIPANT'S FULL ANNUITY HAD HE NOT ELECTED THE REDUCED ANNUITY $9,806.09. CASE B.

1. PARTICIPANT RETIRED ON MAY 31, 1962.

2. ELECTED, AT TIME OF RETIREMENT, TO RECEIVE A REDUCED ANNUITY.

3. PARTICIPANT'S REDUCED ANNUITY $2,710.09.

4. ANNUITY PROVIDED FOR WIFE $1,241.90.

5. PARTICIPANT'S FULL ANNUITY, HAD HE NOT ELECTED TO RECEIVE THE REDUCED ANNUITY, $2,778.17.

6.MARRIAGE TERMINATED BY ABSOLUTE DIVORCE ON NOVEMBER 21, 1963.

BECAUSE OF THE ABSOLUTE DIVORCES THEY HAVE RECEIVED, ARE THE RETIRED PARTICIPANTS UNDER CASE A AND CASE B ENTITLED TO HAVE THEIR ANNUITIES RESTORED TO THE FULL AMOUNTS THEY WOULD HAVE RECEIVED HAD THEY NOT ELECTED, AT THE TIME OF THEIR RETIREMENTS, TO PROVIDE ANNUITIES FOR THEIR WIVES AND REDUCED ANNUITIES FOR THEMSELVES? * * *

SECTION 821 (B) OF THE FOREIGN SERVICE ACT OF 1946, AS AMENDED BY THE ACT OF SEPTEMBER 8, 1960, PUBLIC LAW 86-723, IS AS FOLLOWS:

AT THE TIME OF RETIREMENT, ANY MARRIED PARTICIPANT MAY ELECT TO RECEIVE A REDUCED ANNUITY AND TO PROVIDE FOR AN ANNUITY PAYABLE TO HIS WIFE OR HER HUSBAND, COMMENCING ON THE DATE FOLLOWING SUCH PARTICIPANT'S DEATH AND TERMINATING UPON THE DEATH OF SUCH SURVIVING WIFE OR HUSBAND. THE ANNUITY PAYABLE TO THE SURVIVING WIFE OR HUSBAND AFTER SUCH PARTICIPANT'S DEATH SHALL BE 50 PERCENTUM OF THE AMOUNT OF THE PARTICIPANT'S ANNUITY COMPUTED AS PRESCRIBED IN PARAGRAPH (A) OF THIS SECTION, UP TO THE FULL AMOUNT OF SUCH ANNUITY SPECIFIED BY HIM AS THE BASE FOR THE SURVIVOR BENEFITS. THE ANNUITY OF THE PARTICIPANT MAKING SUCH ELECTION SHALL BE REDUCED BY 2 1/2 PERCENTUM OF ANY AMOUNT UP TO $2,400 HE SPECIFIES AS THE BASE FOR THE SURVIVOR BENEFIT PLUS 10 PERCENTUM OF ANY AMOUNT OVER $2,400 SO SPECIFIED.

THE "RESTORATION PROVISION" REFERRED TO IN CASE A WAS ELIMINATED FROM SECTION 821 (B) BY PUBLIC LAW 86-723. IT PROVIDED THAT PARTICIPANTS ELECTING A REDUCED ANNUITY WITH SURVIVOR BENEFITS UNDER SECTION 821 (B) COULD ELECT A FURTHER REDUCTION AS FOLLOWS:

* * * THE PARTICIPANT MAY AT HIS OPTION ALSO ELECT TO HAVE HIS ANNUITY REDUCED BY AN ADDITIONAL 5 PERCENTUM OF THE AMOUNT WHICH HE ELECTS TO HAVE PAID TO HIS WIDOW, WITH A PROVISION THAT, FROM AND AFTER THE DEATH OF HIS WIFE, IF THE PARTICIPANT SHALL SURVIVE HER, THE ANNUITY PAYABLE TO THE PARTICIPANT SHALL BE THAT AMOUNT WHICH WOULD HAVE BEEN PAYABLE IF NO OPTION HAD BEEN ELECTED.

THE CASE OF WARNER V. UNITED STATES, 157 CT.CL. 1 (1962) WHICH YOU CITE INVOLVED A PARTICIPANT WHO HAD ELECTED TO HAVE HIS REDUCED ANNUITY FURTHER REDUCED UNDER THE PROVISION QUOTED IMMEDIATELY ABOVE. AS A RESULT OF THAT ELECTION HE WAS ENTITLED TO HAVE HIS ANNUITY INCREASED TO THE FULL AMOUNT AS COMPUTED UNDER SECTION 821 (A) OF THE FOREIGN SERVICE ACT OF 1946, 22 U.S.C. 1076 (A), IN THE EVENT HIS WIFE PREDECEASED HIM. THE COURT HELD THAT SUCH PARTICIPANT WAS ALSO ENTITLED TO BE PAID THE FULL ANNUITY AFTER HIS MARRIAGE WAS TERMINATED BY AN ABSOLUTE DIVORCE BUT LIMITED ITS HOLDING TO THE PARTICULAR FACTS INVOLVED AS FOLLOWS:

THE ISSUE RAISED BY THE RESPECTIVE CONTENTIONS OF THE PARTIES IS A RELATIVELY NARROW ONE AND INVOLVES THE QUESTION OF WHETHER THE TERMINATION OF A MARRIAGE BY DIVORCE CAN BE EQUATED WITH TERMINATION BY THE DEATH OF THE WIFE FOR THE PURPOSE OF MAKING OPERATIVE THE PROVISIONS OF THE SECOND ELECTION OF SECTION 821 (B). * * * (157 CT.CL., PAGE 4.)

THE ELECTION OF A REDUCED ANNUITY WITH SURVIVOR BENEFITS UNDER SECTION 821 (B) IS IRREVOCABLE AND THE DEATH OF THE PARTICIPANT'S SPOUSE DOES NOT ENTITLE THE PARTICIPANT TO PAYMENT OF HIS FULL ANNUITY EXCEPT UNDER THE PROVISION OF LAW WHICH WAS INVOLVED IN THE WARNER CASE. THE LAW DOES NOT AUTHORIZE A PARTICIPANT TO REVOKE HIS ELECTION OF A REDUCED ANNUITY WITH SURVIVOR BENEFITS MADE AT THE TIME OF RETIREMENT ON THE BASIS THAT HE HAS BEEN DIVORCED FROM HIS WIFE AFTER HE RETIRES AND WE DO NOT BELIEVE THAT SUCH AUTHORITY MAY BE IMPLIED.

SINCE IN CASE A THE PARTICIPANT INVOLVED DID NOT ELECT A FURTHER REDUCTION OF HIS ANNUITY TO PROVIDE FOR THE PAYMENT OF A FULL ANNUITY UPON THE DEATH OF HIS WIFE AND SINCE IN CASE B THE STATUTE CONCERNED NO LONGER PERMITTED SUCH AN ELECTION, THE EMPLOYEES IN THOSE CASES ARE NOT ENTITLED TO RECEIVE FULL ANNUITIES AFTER THEIR MARRIAGES WERE TERMINATED BY ABSOLUTE DIVORCE. YOUR DEPUTY UNDER SECRETARY'S QUESTION AS QUOTED ABOVE IS ANSWERED IN THE NEGATIVE.

THE THIRD CASE PRESENTED AND THE RELATED QUESTION ARE AS FOLLOWS: CASE C.

1. PARTICIPANT RETIRING ON AUGUST 31, 1965.

2. DIVORCE ACTION IS PENDING BUT WILL NOT BECOME FINAL UNTIL AFTER THE EFFECTIVE DATE OF RETIREMENT.

3. PARTICIPANT WISHES TO RECEIVE THE REDUCED ANNUITY IN ORDER TO PROVIDE AN ANNUITY FOR HIS WIFE, PROVIDED HE CAN BE ASSURED THAT SHOULD AN ABSOLUTE DIVORCE BE GRANTED THAT HIS WIFE, TO WHOM HE WAS MARRIED AT TIME OF HIS RETIREMENT, WILL STILL BE ELIGIBLE TO RECEIVE SUCH AN ANNUITY IN THE EVENT OF HIS PRIOR DEATH.

IF THIS PARTICIPANT ELECTS, ON OR BEFORE THE EFFECTIVE DATE OF HIS RETIREMENT, TO RECEIVE A REDUCED ANNUITY AND TO PROVIDE AN ANNUITY FOR HIS WIFE AND SUBSEQUENT TO THE EFFECTIVE DATE OF RETIREMENT AN ABSOLUTE DIVORCE IS GRANTED, WOULD SUCH FORMER WIFE STILL BE ELIGIBLE TO RECEIVE THE ANNUITY IN THE EVENT OF THE PARTICIPANT'S PRIOR DEATH; PROVIDED, SUCH PARTICIPANT CONTINUED TO RECEIVE THE REDUCED ANNUITY DURING HIS LIFETIME?

SECTION 821 (B) PROVIDES THAT THE SURVIVOR ANNUITY WHICH MAY BE ELECTED BY A MARRIED PARTICIPANT UPON RETIREMENT WILL BE PAID TO THE PARTICIPANT'S "SURVIVING WIFE OR HUSBAND.' AFTER AN ABSOLUTE DIVORCE THE FORMER SPOUSE NO LONGER IS THE "SURVIVING HUSBAND OR WIFE" AND, THEREFORE, IS NOT ENTITLED TO A SURVIVOR'S ANNUITY. SEE WORDS AND PHRASES "SURVIVING SPOUSE" AND ,WIDOW; " 94 C.J.S. WIDOW. THERE IS NO AUTHORITY UNDER WHICH A PARTICIPANT WHO IS MARRIED AT THE TIME OF RETIREMENT MAY SELECT A PERSON TO RECEIVE AN ANNUITY AFTER HIS DEATH AS IS PROVIDED FOR PARTICIPANTS WHO ARE UNMARRIED AT THE TIME OF RETIREMENT BY SECTION 821 (F) OF THE FOREIGN SERVICE ACT OF 1946, 22 U.S.C. 1076 (F). YOUR SECOND QUESTION IS ANSWERED IN THE NEGATIVE.

THE FOURTH CASE AND THE QUESTION PRESENTED THEREWITH ARE AS FOLLOWS: CASE D.

1. PARTICIPANT RETIRED ON JUNE 30, 1962.

2. ELECTED, AT TIME OF RETIREMENT, TO RECEIVE A REDUCED ANNUITY.

3. PARTICIPANT'S REDUCED ANNUITY $12,898.00.

4. ANNUITY PROVIDED FOR WIFE $6,286.00.

5. ABSOLUTE DIVORCE GRANTED ON MAY 15, 1963.

6. PARTICIPANT REMARRIES THE WIFE TO WHOM HE WAS MARRIED ON THE DATE OF HIS RETIREMENT AND FOR WHOM HE PROVIDED THE ANNUITY ON JUNE 15, 1962.

7. PARTICIPANT CONTINUED TO RECEIVE THE REDUCED ANNUITY.

IF THIS PARTICIPANT PREDECEASES HIS WIFE AND THEY ARE STILL MARRIED ON THE DATE OF HIS DEATH, WOULD THE WIFE BE ELIGIBLE TO RECEIVE THE ANNUITY EVEN THOUGH THERE HAD BEEN, SUBSEQUENT TO THE PARTICIPANT'S RETIREMENT, AN ABSOLUTE DIVORCE DECREE AND A VALID REMARRIAGE IN THE INTERIM?

AT THE TIME OF THE PARTICIPANT'S RETIREMENT HE QUALIFIED FOR AND ELECTED TO RECEIVE A REDUCED ANNUITY WITH SURVIVOR BENEFITS UNDER SECTION 821 (B). AS WE HAVE STATED IN ANSWER TO CASE B ABOVE THE REDUCED ANNUITY WHICH HE ELECTED AT THAT TIME WOULD NOT HAVE BEEN INCREASED TO A FULL ANNUITY AT THE TIME OF HIS DIVORCE. IF THE PARTICIPANT DIES BEFORE HIS WIFE SHE WILL BE HIS SURVIVING WIFE BY VIRTUE OF THE REMARRIAGE AND THE FACT THAT THEY WERE DIVORCED FOR A PERIOD BETWEEN HIS RETIREMENT AND DEATH WOULD NOT DEFEAT HER RIGHT TO RECEIVE THE SURVIVOR'S ANNUITY WHICH HE ELECTED AT THE TIME OF RETIREMENT. YOUR FINAL QUESTION IS ANSWERED IN THE AFFIRMATIVE.