[Federal Register Volume 60, Number 51 (Thursday, March 16, 1995)]
[Rules and Regulations]
[Pages 14201-14202]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6508]



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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 60, No. 51 / Thursday, March 16, 1995 / Rules 
and Regulations
[[Page 14201]]

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 831 and 842

RIN 3206-AG10


Termination of Survivor Annuity Entitlement Based on Remarriage 
Before Age 55

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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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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