Termination of Survivor Annuity Entitlement Based on Remarriage Before Age 55

SUMMARY: The Office of Personnel Management (OPM) is issuing final

regulations concerning survivor annuity entitlement under the Civil

Service Retirement System and Federal Employees Retirement System. The

regulations facilitate qualification for a current spouse survivor

annuity in certain cases involving a former spouse's remarriage to a

retiree. The regulations 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.

EFFECTIVE DATE: April 17, 1995.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION: On August 15, 1994, we published (at 59 FR

41716) proposed regulations to facilitate qualification for a current

spouse survivor annuity in certain cases involving a former spouse's

remarriage to a retiree and to limit the scope of the current

regulations prohibiting reinstatement of a former spouse survivor

annuity after an annulment. We received one comment that relates to the

former spouse annulment issue. We address the comment in our discussion

of that issue.

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 will not be deemed

if the retiree, in writing, asks OPM to stop the reduction either

before or after the remarriage.

The new regulations also 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. The comment that we received on the proposed regulations

expressed the belief that, when a void marriage is annulled ab initio,

we should act as though the marriage never occurred.

The rationale for our approach is based on the State 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. See 55 FR 9094, March 12, 1990 (addressing similar

comments in connection with the original issuance of the current

regulation). The only purpose of our proposed rule was to clarify that

the current regulation does not apply to a very small class of cases

for which the alimony analogy is inapposite.

Our alimony analogy does not fit cases in which 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. We proposed and are now amending 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. The alimony analogy continues to fit--and therefore we will

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, [[Page 14202]] Intergovernmental relations, Law enforcement

officers, Pensions, Reporting and recordkeeping requirements,

Retirement.

U.S. Office of Personnel Management.

Lorraine A. Green,

Deputy Director.

Accordingly, OPM is amending subpart F of 5 CFR part 831 and

subpart F of 5 CFR part 842, as follows:

PART 831--RETIREMENT

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

follows:

Authority: 5 U.S.C. 8347; Sec. 831.102 also issued under 5

U.S.C. 8334; Sec. 831.106 also issued under 5 U.S.C. 552a;

Sec. 831.108 also issued under 5 U.S.C. 8336(d)(2);

Sec. 831.201(b)(6) also issued under 5 U.S.C. 7701(b)(2);

Sec. 831.204 also issued under section 7202(m)(2) of the Omnibus

Budget Reconciliation Act of 1990, Pub. L. 105-508, 104 Stat. 1388-

339; Sec. 831.303 also issued under 5 U.S.C. 8334(d)(2);

Sec. 831.502 also issued under 5 U.S.C. 8337; Sec. 831.502 also

issued under section 1(3), E.O. 11228, 3 CFR 1964-1965 Comp.;

Sec. 831.621 also issued under section 201(d) of the Federal

Employees Benefits Improvement Act of 1986, Pub. L. 99-251, 100

Stat. 23; subpart S also issued under 5 U.S.C. 834(k); subpart V

also issued under 5 U.S.C. 8343a and section 6001 of the Omnibus

Budget Reconciliation Act of 1987, Pub. L. 100-203, 101 Stat. 1330-

275; Sec. 831.2203 also issued under section 7001(a)(4) of the

Omnibus Budget Reconciliation Act of 1990, Pub. L. 101-508; 104

Stat. 1388-328.

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); Secs. 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); Secs. 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

OPM terminate the reduction.

[FR Doc. 95-6508 Filed 3-15-95; 8:45 am]

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