B-232052, Aug 19, 1988

B-232052, Aug 19, 1988

MILITARY PERSONNEL - Pay - Survivor Benefits - Annuities - Eligibility - Former spouses DIGEST: The former spouse of a participant in the Survivor Benefit Plan is not entitled to an annuity simply as the result of having been married to the participant at the time he became eligible for and elected to participate in the Plan. Where they are subsequently divorced and there is not a specific provision in the divorce settlement, the former spouse is entitled to an annuity only if the participant elects to designate that former spouse as the Plan beneficiary.

The Honorable Stan Parris

Member, United States House of Representatives:

This is in response to your letter of July 6, 1988, on behalf of Mrs. Violet Wheeler seeking to establish her entitlement to a Survivor Benefit Plan annuity. Mrs. Wheeler was married to Colonel William P. Wheeler when he retired from the Army on January 1, 1981. At that time he elected spouse coverage, naming Violet Wheeler as beneficiary under the Survivor Benefit Plan. They were divorced on September 25, 1982. After Colonel Wheeler's death on August 23, 1987, the Survivor Benefit Plan annuity was paid to his widow, Mrs. Nora Ellis Wheeler, to whom he had been married since November 5, 1982.

The documentation furnished with your letter raises a question as to the propriety of the Army's determination to pay the Survivor Benefit Plan annuity to Nora rather than Violet. Your letter of February 18, 1988, addressed to Colonel Barrow of the U.S. Army Finance and Accounting Center suggests that Violet Wheeler is entitled to the annuity by virtue of having been Colonel Wheeler's wife at the time of his retirement. You refer to information indicating that an individual who meets any of the following three requirements would be entitled to an annuity:

"Married to a retiree at the time of his or her retirement, OR

"Married to the deceased retiree for at least one year before his or her death, OR

"The parent of a child born to a post retirement marriage to the deceased retiree."

These three requirements appear to be derived from 10 U.S.C. Sec. 1447(3) which, for the purpose of establishing entitlement to a Survivor Benefit Plan annuity under 10 U.S.C. Sec. 1450(a), defines the term "widow" as follows:

"(3) 'Widow' means the surviving wife of a person who, if not married to the person at the time he became eligible for retired or retainer pay--

"(A) was married to him for at least one year immediately before his death; or

"(B) is the mother of issue by that marriage."

To qualify as a "widow" under this section, one must meet one or more of the three requirements and, in addition, must be the decedent's "surviving wife." Although Violet Wheeler was married to Colonel Wheeler at the date of his retirement, she was not married to him on the date of his death and, therefore, is not his "surviving wife." Although she could not qualify for an annuity as his "widow," it would have been possible for Colonel Wheeler to provide an annuity for Violet as his "former spouse." It does not appear that he made the election necessary to do so.

We are enclosing a copy of our decision Brigadier General Fred A. Treyz, USAF, Retired, Deceased, 65 Comp.Gen. 634 (1985), which discusses the election necessary for a Survivor Benefit Plan participant to provide an annuity for his or her former spouse. The circumstances of that case are similar to Mrs. Wheeler's in that General Treyz was married to Elva when he retired in 1978. They were divorced 2 years later and in 1984, at the time of his death, General Treyz had been remarried to a second wife for more than 1 year. The case is different from Mrs. Wheeler's, however, in that General Treyz executed a former spouse election in favor of Elva within the 1-year period after the law was amended to permit a person participating in the Survivor Benefit Plan to elect coverage for a former spouse.

Effective September 24, 1984, Public Law 98-94 amended the Survivor Benefit Plan statute to give eligible members an additional election for purposes of designating a Plan beneficiary. A member who elected into the Plan by designating his spouse when he became eligible and later divorced the spouse was given 1 year from September 24, 1984 (or 1 year from the date of divorce if the divorce took place after passage of the act), to elect to designate that spouse as the Plan beneficiary. As amended 10 U.S.C. Sec. 1448(b) provides:

"(3)(A) A person--

"(i) who is a participant in the Plan and is providing coverage for a spouse ... and

"(ii) who has a former spouse who was not that person's former spouse when he became eligible to participate in the Plan,

may ... elect to provide an annuity to that former spouse. Any such election terminates any previous coverage under the Plan and must be written, signed by the person, and received by the Secretary concerned within one year after the date of the decree of divorce, dissolution, or annulment.

"(C) An election under this paragraph may not be revoked except in accordance with section 1450(f) of this title and is effective as of the first day of the first calendar month following the month in which it is received by the Secretary concerned.

"(4) A person who elects to provide an annuity to a former spouse under paragraph (2) or (3) shall, at the time of making the election, provide the Secretary concerned with a written statement (in a form to be prescribed by that Secretary and signed by such person and the former spouse) setting forth whether the election is being made pursuant to a written agreement previously entered into voluntarily by such person as a part of or incident to a proceeding of divorce, dissolution, or annulment and (if so) whether such voluntary written agreement has been incorporated in, or ratified or approved by a court order. ..."

Under section 941(b) of Public Law 98-94, a person who on the date of enactment of the law, September 24, 1983, was a participant in the Plan providing coverage for a spouse, was given 1 year from that date of enactment to elect coverage for a former spouse. The 1 year allowed in subsection (b)(3)(A), quoted above, began to run not from the date of divorce but from the date of enactment. This provision was included to allow persons such as Colonel Wheeler, who prior to enactment of the law had been married, retired and divorced, the opportunity to elect coverage for their former spouses. The legislative history of Public Law No. 98-94 contains the following statement concerning its purpose:

"The primary purpose of these technical amendments is to clarify the authority of individuals electing to participate in the Plan before the effective date of the Uniformed Services Former Spouses' Protection Act to designate their former spouses as Plan beneficiaries. For example, the amendments would make it clear that a member who elected into the Plan by designating his spouse in 1975 and divorced that spouse in 1980 could now elect to designate his former spouse as a beneficiary under the Plan. would have to make that election within one year after enactment of this Act. ..." S. Rep. No. 174, 98th Cong., 1st Sess. 255, reprinted in 1983 U.S. Code Cong. & Ad. News 1081, 1145.

As explained above, the former spouse of a participant in the Survivor Benefit Plan is not entitled to an annuity simply as the result of having been married to the participant at the time he became eligible for and elected to participate in the Plan. Where they are subsequently divorced, the former spouse is entitled to an annuity only if the participant elects to designate that former spouse as the Plan beneficiary or under 10 U.S.C. Sec. 1450(f)(3) if, by the terms of an enforceable divorce settlement, the participant agrees to make such an election. The documentation forwarded with your letter indicates that Colonel Wheeler did not make a voluntary election to make Violet Wheeler his beneficiary and there is nothing in the record to suggest that the terms of any divorce settlement between the two would have compelled such an election.

We hope the above explanation and enclosed decision will help to clarify for Mrs. Wheeler why she is not entitled to a Survivor Benefit Plan annuity.