Termination of Survivor Annuity Entitlement Based on Remarriage Before Age 55

SUMMARY: The Office of Personnel Management (OPM) is proposing

regulations concerning survivor annuity entitlement under the Civil

Service Retirement System and Federal Employees Retirement System. The

regulations would facilitate qualification for a current spouse

survivor annuity in certain cases involving a former spouse's

remarriage to a retiree. The regulations would also limit the scope of

the current regulations prohibiting reinstatement of a former spouse

survivor annuity after an annulment. The regulations are necessary to

implement the basic purpose of the statute.

DATES: Comments must be received on or before October 14, 1994.

ADDRESSES: Send comments to Reginald M. Jones, Jr., Assistant Director

for Retirement Policy Development; Retirement and Insurance Group;

Office of Personnel Management; P.O. Box 57; Washington, DC 20044; or

deliver to OPM, Room 4351, 1900 E Street, NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT:

Harold L. Siegelman, (202) 606-0299.

SUPPLEMENTARY INFORMATION: Under sections 8341(h)(3)(B) and 8445(c)(2)

of title 5, United States Code, a former spouse's survivor annuity

entitlement terminates if the former spouse remarries before age 55. In

a recent case, a retiree's former spouse was eligible for a survivor

annuity, but she remarried the retiree before she reached age 55. They

remarried to make sure the former spouse would get a survivor annuity.

The retiree died 1 month after the remarriage without notifying OPM and

the survivor reduction in the retiree's annuity continued until his

death. The retiree, assuming the remarriage would assure his wife's

future, died without having filed a written election to provide a

survivor annuity for her. (See 5 U.S.C. 8339(j)(5)(B) and

8419(b)(2)(C). In our adjudication of this case, we decided to construe

the statute so that the widow's pre-age 55 remarriage to the retiree

under these circumstances does not disqualify her. To interpret the law

to prevent her from receiving a survivor annuity would produce an

unconscionable result that Congress never intended. Accordingly, we

decided to issue regulations to adopt a more reasonable approach to

this situation. Under these regulations, when a retiree remarries a

former spouse who would be entitled, if not for the remarriage, to a

former spouse survivor annuity based on the retiree's service, and the

retiree takes no action to terminate the annuity reduction, we will

deem the retiree to have elected to continue the reduction to provide a

current spouse annuity under section 8339(j)(5)(B)(iii) or section

8419(b)(2)(C) of title 5, United States Code. We will deem the election

to have occurred whether the former spouse's entitlement was based on

the retiree's election or on a court order. Of course, an election

would not be deemed if the retiree, in writing, asks OPM to stop the

reduction either before or after the remarriage.

Also, with respect to remarriages of former spouses, the proposed

regulations would clarify the scope of the current regulations

concerning reinstatement of a former spouse survivor annuity

entitlement after an annulment. Our current regulations provide that a

former spouse's entitlement will not be reinstated even if it ended due

to a remarriage that is later determined to be invalid and is annulled.

This rule is based on the State's courts' treatment of remarriage for

alimony purposes. Generally, the courts will not allow alimony to be

reinstated when the remarriage is annulled because the payer of the

alimony is allowed to rely on the act of remarriage (regardless of

validity) to plan for the future without the alimony obligation.

However, our alimony analogy is not appropriate when the former

spouse's entitlement is not related to any reduction in the retiree's

annuity. Section 4(b)(1)(B) and 4(b)(4) of the Civil Service Retirement

Spouse Equity Act of 1984, as amended, provide survivor annuity

benefits to former spouses who meet certain criteria, without requiring

a reduction in a retiree's benefit. Accordingly, we are proposing to

change section 831.644(d) of Title 5, Code of Federal Regulations, to

allow reinstatement of entitlements based on section 4(b)(1)(B) and

4(b)(4) of the Civil Service Retirement Spouse Equity Act of 1984, as

amended, if the remarriage before age 55 is later found to be invalid

from its inception. We would not reinstate the former spouse's

entitlement following an annulment in any situation in which a

reduction in the employee annuity is required to provide the former

spouse survivor annuity.

Regulatory Flexibility Act

I certify that this regulation will not have a significant economic

impact on a substantial number of small entities because the regulation

will only affect Federal agencies and retirement payments to retired

Government employees, spouses, and former spouses.

List of Subjects in 5 CFR Parts 831 and 842

Administrative practice and procedure, Air traffic controllers,

Claims, Disability benefits, Firefighters, Government employees, Income

taxes, Intergovernmental relations, Law enforcement officers, Pensions,

Reporting and recordkeeping requirements, Retirement.

U.S. Office of Personnel Management.

Lorraine A. Green,

Deputy Director.

Accordingly, OPM proposes to amend 5 CFR parts 831 and 842, as

follows:

PART 831--RETIREMENT

1. The authority citation for part 831 continues to read in part as

follows:

Authority: 5 U.S.C. 8347 * * *

Subpart F--Survivor Annuities

2. In section 831.644, paragraph (d) is revised to read as follows:

Sec. 831.644 Remarriage.

* * * * *

(d)(1) If present or future entitlement to a former spouse annuity

is terminated because of remarriage before age 55, the entitlement will

not be reinstated upon termination of the remarriage by death or

divorce.

(2) If present or future entitlement to a former spouse annuity is

terminated because of remarriage before age 55, the entitlement will

not be reinstated upon annulment of the remarriage unless--

(i) The decree of annulment states that the marriage is without

legal effect retroactively from the marriage's inception; and

(ii) The former spouse's entitlement is based on section 4(b)(1)(B)

or section 4(b)(4) of Pub. L. 98-615.

(3) If a retiree who is receiving a reduced annuity to provide a

former spouse annuity and who has remarried that former spouse (before

the former spouse attained age 55) dies, the retiree will be deemed to

have elected to continue the reduction to provide a current spouse

annuity unless the retiree requests (or has requested) in writing that

OPM terminate the reduction.

PART 842--FEDERAL EMPLOYEES RETIREMENT SYSTEM--BASIC ANNUITY

3. The authority citation for part 842 continues to read as

follows:

Authority: 5 U.S.C. 8461(g); Sec. Sec. 842.104 and 842.106 also

issued under 5 U.S.C. 8461(n); Sec. 842.105 also issued under 5

U.S.C. 8402(c)(1) and 7701(b)(2); Sec. 842.106 also issued under

section 7202(m)(2) of the Omnibus Budget Reconciliation Act of 1990,

Pub. L. 101-508 and 5 U.S.C. 8402(c)(1); Sec. Sec. 842.604 and

842.611 also issued under 5 U.S.C. 8417; Sec. 842.607 also issued

under 5 U.S.C. 8416 and 8417; Sec. 842.614 also issued under 5

U.S.C. 8419; Sec. 842.615 also issued under 5 U.S.C. 8418;

Sec. 842.703 also issued under section 7001(a)(4) of the Omnibus

Budget Reconciliation Act of 1990, Pub. L. 101-508; Sec. 842.707

also issued under section 6001 of the Omnibus Budget Reconciliation

Act of 1987, Pub. L. 100-203; Sec. 842.708 also issued under section

4005 of the Omnibus Budget Reconciliation Act of 1989, Pub. L. 101-

239 and section 7001 of the Omnibus Budget Reconciliation Act of

1990, Pub. L. 101-508; subpart H also issued under 5 U.S.C. 1104.

Subpart F--Survivor Elections

4. In section 842.612, paragraph (h) is added to read as follows:

Sec. 842.612 Post-retirement election of a fully reduced annuity or

one-half reduced annuity to provide a current spouse annuity.

* * * * *

(h) If a retiree who is receiving a reduced annuity to provide a

former spouse annuity and who has remarried that former spouse (before

the former spouse attained age 55) dies, the retiree will be deemed to

have elected to continue the reduction to provide a current spouse

annuity unless the retiree requests (or has requested) in writing that

OMP terminate the reduction.

[FR Doc. 94-19811 Filed 8-12-94; 8:45 am]

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