Notice2021-24792
Civil Service Retirement System and Federal Employees' Retirement System; Notice to Same-Sex Spouses of Deceased Federal Employees or Annuitants Whose Marriages Lasted Less Than Nine Months
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 17, 2021
Issuing agencies
Personnel Management Office
Abstract
To establish entitlement to a survivor annuity or basic employee death benefit ("BEDB") under the Civil Service Retirement System (CSRS) and the Federal Employees' Retirement System (FERS), a "widow" or "widower" must have been married to a federal employee or annuitant for at least 9 months immediately before the employee or annuitant's death. Same-sex spouses of deceased federal employees or annuitants whose spouse died prior to the time the 9-month marriage requirement could be satisfied may have been prevented or frustrated from satisfying this eligibility requirement as a result of provisions enacted under the Defense of Marriage Act (DOMA) or state laws prohibiting same sex marriages, now understood to have been unconstitutional. Therefore, this notice provides information about when, and under what circumstances, OPM will deem the 9-month marriage requirement satisfied, notwithstanding the actual duration of the marriage, to provide affected applicants with benefits they could have obtained had they been permitted to marry earlier in their states of residence.
Full Text
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<title>Federal Register, Volume 86 Issue 219 (Wednesday, November 17, 2021)</title>
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[Federal Register Volume 86, Number 219 (Wednesday, November 17, 2021)]
[Notices]
[Pages 64234-64235]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-24792]
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OFFICE OF PERSONNEL MANAGEMENT
Civil Service Retirement System and Federal Employees' Retirement
System; Notice to Same-Sex Spouses of Deceased Federal Employees or
Annuitants Whose Marriages Lasted Less Than Nine Months
AGENCY: Office of Personnel Management.
ACTION: Notice.
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SUMMARY: To establish entitlement to a survivor annuity or basic
employee death benefit (``BEDB'') under the Civil Service Retirement
System (CSRS) and the Federal Employees' Retirement System (FERS), a
``widow'' or ``widower'' must have been married to a federal employee
or annuitant for at least 9 months immediately before the employee or
annuitant's death. Same-sex spouses of deceased federal employees or
annuitants whose spouse died prior to the time the 9-month marriage
requirement could be satisfied may have been prevented or frustrated
from satisfying this eligibility requirement as a result of provisions
enacted under the Defense of Marriage Act (DOMA) or state laws
prohibiting same sex marriages, now understood to have been
unconstitutional. Therefore, this notice provides information about
when, and under what circumstances, OPM will deem the 9-month marriage
requirement satisfied, notwithstanding the actual duration of the
marriage, to provide affected applicants with benefits they could have
obtained had they been permitted to marry earlier in their states of
residence.
DATES: If a same-sex surviving spouse of a deceased federal employee or
annuitant is unable to show that the couple was married for at least 9-
months immediately before the death of the employee or annuitant, and
the marriage occurred before, on, or within one year after the Supreme
Court issued Windsor on June 26, 2013 (or occurred within one year
after the Supreme Court issued Obergefell on June 26, 2015, in
circumstances where the couple resided in a jurisdiction that
prohibited same-sex marriage at any time after the issuance of
Windsor), OPM will deem the 9-month marriage requirement satisfied for
purposes of establishing entitlement to survivor annuity benefits and/
or a BEDB.
FOR FURTHER INFORMATION CONTACT: Alison Pastor, (202) 606-0299.
SUPPLEMENTARY INFORMATION: On June 26, 2013, the U.S. Supreme Court
issued United States v. Windsor,\1\ where it struck down section 3 of
Defense of Marriage Act (DOMA), 1 U.S.C. 7 (1996), as unconstitutional
inasmuch as it required the Federal Government to treat same-sex
marriages differently from opposite-sex marriages for purposes of
determining entitlement to federal benefits. The Windsor decision,
however, did not address whether state laws prohibiting the legal
recognition of same-sex marriages were similarly unconstitutional. As a
result, there was a period after Windsor where some jurisdictions
allowed for the legal recognition of same-sex marriages and some did
not. Thereafter, the U.S. Supreme Court issued United States v.
Obergefell on June 26, 2015 \2\ striking down state laws that
prohibited the legal recognition of same-sex marriages as
unconstitutional.
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\1\ See 570 U.S. 744 (2013).
\2\ See 576 U.S. 644 (2015).
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After the U.S. Supreme Court issued Windsor, OPM published two
Federal Register notices. The first notice, 78 FR 47018 (Aug. 2, 2013),
informed affected annuitants that they had an extended opportunity,
until June 26, 2015--or two years after Windsor was issued--to elect a
survivor annuity for a same-sex spouse if the couple had married prior
to Windsor and the annuitant had been prevented by section 3 of DOMA
from making a timely election. The second notice, 79 FR 57589 (Sept.
25, 2014), informed same-sex surviving spouses of deceased federal
employees or annuitants who died before Windsor, that they may apply
for survivor benefits or re-apply (if previously denied benefits as a
result of DOMA) so that OPM may process their applications in
accordance with the Windsor decision. In both these notices, OPM
indicated that for purposes of determining entitlement to federal
retirement benefits, OPM would recognize same-sex marriages legally
entered into, whether or not the affected individual's domicile would
legally recognize that marriage.
Thus, consistent with OPM's prior Federal Register notices and
consistent with the holdings in Windsor and Obergefell, OPM is
providing this notice to affected same-sex surviving spouses of
deceased Federal employees or annuitants regarding when and under what
circumstances OPM will deem the 9-month marriage requirement satisfied
under 5 U.S.C. 8341(a), 8441(1)-(2) for purposes of determining an
applicant's entitlement to survivor annuity benefits and/or (if
applicable) to a BEDB:
If an applicant for survivor annuity benefits and/or a BEDB can
show--
<bullet> The applicant was in a same-sex marriage with a deceased
employee or annuitant; and
<bullet> But for the 9-month marriage requirement under 5 U.S.C.
8341(a) and 8441(1)-(2), the applicant would be eligible for survivor
annuity benefits (and/or a BEDB, if applicable); and
<bullet> The applicant was married to the deceased employee or
annuitant prior to the Supreme Court issuing Windsor on June 26, 2013;
or
[[Page 64235]]
<bullet> The applicant was married to the deceased employee or
annuitant within one year from the date the Supreme Court issued
Windsor on June 26, 2013; or
<bullet> The applicant was married to the deceased employee or
annuitant within one year after the Supreme Court issued Obergefell on
June 26, 2015, in circumstances where the couple resided in a
jurisdiction that prohibited same-sex marriage at any time after
Windsor
--OPM will deem the 9-month marriage requirement satisfied for purposes
of determining entitlement to survivor annuity benefits and/or a BEDB.
Additionally, if an affected applicant (as indicated above) was
married to the deceased annuitant after retirement, and is additionally
unable to show that the annuitant elected a survivor annuity benefit on
the applicant's behalf within 2 years of marriage, as required by 5
U.S.C. 8341(b)(3), 8339(j)(5)(C) and (k)(2), 8416(b)-(c), and
8442(a)(2), the applicant may submit evidence to OPM showing that the
annuitant intended to elect a survivor annuity for the applicant, and
that but for the provisions under DOMA and/or state laws prohibiting
same-sex marriage, the annuitant would have timely elected a survivor
annuity on the applicant's behalf. OPM will consider any documentary
evidence for this purpose, either in its own files or submitted by the
applicant, that shows that the annuitant attempted to elect a survivor
annuity for the applicant through correspondence with OPM.
Determinations regarding an affected applicant's corresponding
entitlement to Federal Employees Health Benefits (FEHB) will be
governed by the provisions under chapter 89 of title 5, United States
Code; part 890 of title 5, Code of Federal Regulations; and the
guidance OPM published in its Federal Register notice, Post-DOMA
Survivor Annuitant Federal Health Benefit Waiver Criteria, 80 FR 74,817
(Nov. 30, 2015).
How To Apply for Benefits: If you are an affected same-sex spouse
of a deceased federal employee or annuitant, you may submit an
application for death benefits to OPM, Standard Form (SF) 2800 for CSRS
and SF 3104 for FERS (or you may resubmit an application if OPM
previously denied you survivor annuity benefits or a BEDB because you
could not establish you had met the 9-month marriage requirement). You
may download these application forms from OPM's website at <a href="http://www.opm.gov/forms/standard-forms/">http://www.opm.gov/forms/standard-forms/</a>, and may submit your applications to
this address: Office of Personnel Management, Attention: DOMA-9MMR,
P.O. Box 45, Boyers, PA 16017-0045. If, in the alternative, you would
prefer OPM mail you an application for benefits or if you have
questions regarding submitting your application, you may write OPM
using the address provided above, or you may call OPM's Retirement
Information Office at 1-888-767-6738 or may send an email to
<a href="/cdn-cgi/l/email-protection#95e7f0e1fce7f0d5fae5f8bbf2fae3"><span class="__cf_email__" data-cfemail="cdbfa8b9a4bfa88da2bda0e3aaa2bb">[email protected]</span></a>.
Office of Personnel Management.
Alexys Stanley,
Regulatory Affairs Analyst.
[FR Doc. 2021-24792 Filed 11-16-21; 8:45 am]
BILLING CODE 6325-38-P
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</html>Indexed from Federal Register on November 17, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.