A surviving spouse of a federal employee was unsuccessful in convincing the MSPB and a court that she should be allowed to set aside her deceased husband’s election of a full retirement annuity and replace it with one permitting a survivor annuity. Kievenaar v. Office of Personnel Management (Federal Circuit Court of Appeals, No. 05-3048, September 1, 2005)
Joan Kievenaar’s husband, Peter, was a 32-year employee with the Department of Navy who filled out his retirement application papers, electing a self-only annuity. He included the necessary “Spouse’s Consent to Survivor Election,” in which his wife acknowledged that she freely consented to her spouse’s annuity election and that she understood that her consent was final. She also signed a notarized form as evidence of her consent to her husband’s election “to provide no survivor annuity.” Of course, the self-only annuity meant that Peter would receive a higher retirement annuity payment, which is presumably why he took this approach. (Opinion p. 2)
Sadly, Peter died unexpectedly just three weeks after the effective date of his retirement. Mrs. Kievenaar petitioned OPM to provide her a survivor annuity. OPM denied her petition and she appealed to the Merit Systems Protection Board.
Mrs. Kievenaar advanced three basic arguments to the MSPB: (1) at the time of his retirement application, Peter and she had no real understanding of retirement ins and outs and the Navy did not properly counsel him regarding the consequences of a self-only annuity election; (2) she should have been allowed to change the election within 30 days after the first regular annuity payment; and (3) because her husband died before OPM’s final adjudication on his application, then 5 C.F.R. section 831.2203(f) applied and would operate to deem her husband to have elected a survivor “alternative form of an annuity” (AFA). All three arguments were rejected by the AJ. (Opinion pp. 3-4). When appealed to the full Board, there were two Board members. They upheld the AJ on arguments one and two, but they disagreed on the third argument and therefore on this third point the AJ’s decision became the final Board decision. Mrs. Kievenaar appealed that final decision to the Federal Circuit Court of Appeals.
The regulation cited in the third argument would almost appear to provide a slam-dunk victory for Mrs. Kievenaar. Here is what that provision says: