Appendix B to Subpart J of Part 838 - Guidelines for Interpreting State Court Orders Awarding Survivor Annuity Benefits to Former Spouses
5:2.0.1.1.21.10.96.19.6 : Appendix B
Appendix B to Subpart J of Part 838 - Guidelines for Interpreting
State Court Orders Awarding Survivor Annuity Benefits to Former
Spouses United States of America Office of Personnel Management
Retirement and Insurance Group Guidelines for Interpreting State
Court Orders Awarding Survivor Annuity Benefits to Former Spouses
These guidelines explain the interpretation that the Office of
Personnel Management (OPM) will place on terms and phrases
frequently used in awarding survivor benefits. These guidelines are
intended not only for the use of OPM, but also for the legal
community as a whole, with the hope that by informing attorneys, in
advance, about the manner in which OPM will interpret terms written
into court orders, the resulting orders will be more carefully
drafted, using the proper language to accomplish the aims of the
court.
I. Insurable Interest Annuities
Two types of potential survivor annuities may be provided by
retiring employees to cover former spouses. Section 8341(h) of
title 5, United States Code, provides for “former spouse
annuities.” Section 8339(k) of title 5, United States Code,
provides for “insurable interest annuities.” These are distinct
benefits, each with its own advantages.
A. OPM will enforce State court orders to provide section
8341(h) annuities. These annuities are less expensive and have
fewer restrictions than insurable interest annuities but the former
spouse's interest will automatically terminate upon remarriage
before age 55. To provide a section 8341(h) annuity, the order must
use terms such as “former spouse annuity,” “section 8341(h)
annuity,” or “survivor annuity.”
B. OPM will not enforce State court orders to provide “insurable
interest annuities” under section 8339(k). These annuities may only
be elected at the time of retirement by a retiring employee who is
not retiring under the disability provision of the law and who is
in good health. The retiree may also elect to cancel the insurable
interest annuity to provide a survivor annuity for a spouse
acquired after retirement. The parties might seek to provide this
type of annuity interest if the non-employee spouse expects to
remarry before age 55, if the employee expects to remarry a younger
second spouse before retirement, or if another former spouse has
already been awarded a section 8341(h) annuity. However, the State
court will have to provide its own remedy if the employee is not
eligible for or does not make the election. OPM will not enforce
the order. Language including the words “insurable interest” or
referring to section 8339(k) will be interpreted as providing for
this type of survivor benefit.
C. In orders which contain internal contradictions about the
type of annuity, such as “insurable interest annuity under section
8341(h),” the section reference will control.
II. Orders Directed at Other Retirement Systems
A. Except as provided in paragraphs A1 and A2, orders directed
at other retirement systems will not be interpreted as affecting
Civil Service Retirement System (CSRS) benefits.
1. Orders that mistakenly label CSRS benefits as Federal
Employee's Retirement System (FERS) benefits, will be interpreted
as affecting CSRS benefits and vice versa.
2. Unless the order expressly provides otherwise, for employees
transferring to FERS, orders directed at CSRS benefits will be
interpreted as applying to the entire FERS basic benefit, including
the CSRS component, if any.
B. Orders directed at other Federal retirement systems such as
military retired pay, Foreign Service retirement benefits and
Central Intelligence Agency retirement benefits will not be
interpreted as awarding a former spouse annuity under CSRS. Thus,
orders should contain language identifying the retirement system
from which survivor benefits are being awarded. For example, orders
should contain terms such as “CSRS,” “OPM,” “Federal Government
employee survivor benefits,” or “survivor benefits payable based on
service with the U. S. Department of Agriculture,” etc.
C. Orders affecting military retired pay, even when military
retired pay has been waived for inclusion in CSRS annuities, will
not be interpreted as awarding a former spouse annuity under
CSRS.
III. Specificity Required To Award a Former Spouse Annuity.
A. Orders must contain language identifying the benefits
affected. For example, “CSRS,” “OPM,” or “Federal Government”
survivor benefits, or “survivor benefits payable based on service
with the U.S. Department of Agriculture,” etc., will be considered
sufficient identification.
B. 1. Except as provided paragraphs B2 through B4, orders must
specify the benefit being awarded. Orders must contain language
such as “survivor annuity,” “death benefits,” “former spouse
annuity under 5 U.S.C. 8341(h)(1),” etc.
2. Orders that provide that the former spouse is to “continue
as” or “be named as” the “designated beneficiary” of CSRS benefits
will be interpreted to award a former spouse annuity.
3. Orders that provide that the former spouse will “continue to
receive benefits after the death of” the employee or “that benefits
will continue after the death of” the employee, but do not use
terms such as “survivor annuity,” “death benefits,” “former spouse
annuity,” or similar terms will not be interpreted to award a
former spouse annuity.
4. Orders that give the former spouse the right to elect a
former spouse annuity will be interpreted to award a former spouse
annuity. The former spouse does not have an election opportunity.
OPM will not accept an election by the former spouse to eliminate
the court-awarded former spouse annuity.
C. 1. Orders that unequivocally award survivor annuity and
direct the former spouse to pay for that benefit are qualifying
court orders. If the former spouse has also been awarded a portion
of the retiree's benefits then the cost of the survivor benefit
will be deducted from the former spouse's portion of the annuity
(if sufficient to cover the total cost - there will be no partial
withholding). Otherwise, the reduction will be taken from the
retiree's annuity and collection from the former spouse will be a
private matter between the parties.
2. Orders that condition the award of survivor annuity on the
former spouse's payment of the cost of the benefit are qualifying
only if there is also an award of retirement benefits sufficient to
cover the cost. Absent a sufficient award of employee retirement
benefits to pay the cost of survivor benefits, the order is not
qualifying.
D. Orders providing that former spouses will keep the survivor
annuity to which they were entitled at the time of the divorce will
be interpreted to award a former spouse annuity in the same amount
as they had at the time of divorce.
E. Orders that fail to state the amount of the former spouse
annuity will be interpreted as providing the maximum former spouse
annuity.
F. Orders awarding a former spouse annuity of less than $12 per
year are qualifying court orders. Such orders will be interpreted
to provide an initial rate of $1 per month plus all cost-of-living
increases occurring after the date of the order. The reduction in
the retiree's annuity will be computed as though the order provided
a former spouse annuity of $1 per month.
G. Orders that provide full survivor annuity benefits to
a former spouse with the contingency that the employee or annuitant
may elect a lesser benefit for the former spouse upon his or
her remarriage will be interpreted to provide only a full survivor
annuity benefit to the former spouse. In order to provide full
survivor annuity benefits to a former spouse with the contingency
that the employee or annuitant may provide a lesser survivor
annuity benefit to the former spouse in order to provide survivor
annuity benefits for a subsequent spouse, the order should allow a
reduction in the former spouse benefit contingent upon the
employee's or annuitant's election of survivor annuity
benefits for a subsequent spouse. A reduction in the amount of
survivor benefits provided to the former spouse will not be
permitted if it is contingent upon the employee's or annuitant's
remarriage rather than his or her election of
survivor annuity benefits for a subsequent spouse. (See 5 CFR
838.1004(b).)
[55 FR 9105, Mar. 12, 1990. Redesignated and amended at 57 FR
33596, July 29, 1992]