Who Wins the Survivor Annuity: Wife Number 1 or Wife Number 2?

A court of appeals finds that OPM had an obligation to to check out the facts of a case that impact the election of a survivor annuity. The case is therefore sent back to the Board for a new decision based on the finding of the court.

The Federal Circuit Court of Appeals disagrees with the decision of the Office of Personnel Management—which was upheld by the Merit Systems Protection Board—to deny a survivor’s annuity to a second marriage spouse. The case is Nixon v. Office of Personnel Management, C.A.F.C. No. 06-3092 (Precedent), June 28, 2006.

Plaintiff Christine Nixon petitioned OPM to award her a survivor’s annuity where the facts demonstrated that her husband had tried unsuccessfully to get OPM to withdraw the survivor’s annuity for his former spouse. Mr. Nixon was under the CSRS retirement program.

When he retired in 1994, Nixon elected a survivor’s benefit for his first wife. This reduced his monthly annuity. When they divorced, she continued to be eligible for the survivor’s benefit. However, Wife No. One remarried at the age of 47. Under retirement law, she was ineligible for a survivor annuity since she remarried before reaching age 55. (Opinion p. 3)

Mr. Nixon launched a long, and unsuccessful campaign to have OPM declare Wife No. One ineligible and to have his annuity increased. OPM refused, pointing out that Mr. Nixon had the burden of establishing the fact of the former wife’s remarriage. All he had to do was get a copy of her marriage certificate and submit it to OPM. Easier said than done. Mr. Nixon wrote OPM more than once, explaining that he had tried to locate a marriage certificate to no avail. He requested that OPM write the former spouse and demand that she provide the certificate to them. OPM opted not to do so.

Meanwhile, Mr. Nixon remarried. He had two years to elect a survivor’s annuity for the new Mrs. Nixon. He tried to resolve the annuity reduction for his first wife so that his second wife could be eligible for the survivor’s annuity. He wrote OPM on this point also. He explained to OPM that he could not financially afford to have his pension reduced by a second survivor’s annuity. He again asked OPM to deal with his ex-wife to get the documentation that she had refused to provide him. (It’s hardly surprising that an ex-spouse would refuse to cooperate in taking away a right to a survivor’s annuity.)

As fate would have it, Mr. Nixon died before he could get this matter resolved. Wife No. Two petitioned OPM to receive a survivor’s annuity as her husband had wished. OPM denied her petition since Mr. Nixon had not made the election for her during the required 2-year period. MSPB upheld the OPM denial of the benefit.

But the appeals court was less rigid. It held that OPM was required to inquire into the first wife’s remarriage when presented with information by Mr. Nixon that she had remarried and that she refused to cooperate in furnishing evidence to OPM. OPM’s placement of the burden on Mr. Nixon was an “abuse of discretion.” (p. 10) The court points out, “we think that, if a former spouse fails in his or her obligation to notify OPM of her remarriage, OPM is obligated to check the matter by direct communication….” (p. 8) The question then becomes whether OPM’s error was harmful, meaning did it keep Mr. Nixon from applying for the survivor annuity for his second wife. That requires further factual development and a determination by MSPB. Therefore, the case is remanded to the Board to make that decision. (p. 14)

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.