Deathbed Marriage and the Federal Retirement Annuity

Are you living in a “common law” arrangement? Do you want to ensure your husband or wife receives your federal retirement annuity? If you think the conversation will be unpleasant, consider the consequences of not having the conversation.

Are you living with another person as man and wife without having ever gotten around to getting married?

Perhaps living together is reminiscent of your college days from the ’60’s with the thought of free love and being young and free. Perhaps being married makes you feel tied down and you don’t want to ruin a good relationship by having a piece of paper that says you have decided to make a public commitment to each other.

Perhaps you are just not sure if this relationship will last and you and your partner cannot make a decision or even discuss the issue without getting into an argument. Why should you rock the boat with an unpleasant discussion?

Regardless of the reason, if you are in a loving, committed relationship, and you are a federal employee or a retired federal employee, you may be leaving problems behind for your loved ones after you depart this earth if you do not get married.

Here is an example of the problems that can ensue.

Christine Donati and Andre Gabert lived together in New Hampshire. They held themselves out as husband and wife. For whatever reasons they may have had, they never applied for a marriage license or had a ceremonial marriage.

Mr. Gabert was a federal employee with more than 10 years of federal service. After his death, Ms. Donati went to court to be declared the common law wife of the former federal civil servant. As they lived in New Hampshire, the state law is applicable. The relevant statute reads:

“Persons cohabiting and acknowledging each other as husband and wife, and generally reputed to be such, for the period of 3 years, and until the decease of one of them, shall thereafter be deemed to have been legally married.”

Based on this law, the New Hampshire court granted her request.

Ms. Donati then went to the Office of Personnel Management (OPM) in order to start receiving a federal annuity which she believed she was entitled to receive as the wife of the former fed. But, said OPM, she was not entitled to receive the federal pension despite the New Hampshire court ruling declaring her to have been the common law wife of a federal employee. She was not a “widow” within the meaning of the applicable statute because the marriage was not recognized during the life of Mr. Gabert.

She then filed an appeal of the OPM decision. The administrative judge found the appellant’s entitlement to a survivor benefit to be a “close question” but not close enough to send her the money. The AJ sided with the agency protecting the taxpayer’s funds and concluded that OPM correctly concluded she did not satisfy the statutory criteria for obtaining federal retirement benefits.

Ms. Donati (or Mrs. Gabert) then filed an appeal with the Merit Systems Protection Board (MSPB) to try and win the survivor annuity benefits.

The MSPB was more sympathetic than OPM in hearing her appeal. The MSPB looked on the decision of the New Hampshire’s law as recognizing common law marriage only after death, essentially for inheritance purposes. And, opined the MSPB, a survivor annuity, as a benefit arising only after death, is covered by New Hampshire law for purposes of determining whether the appellant was married to Mr. Gabert.

In short, this was not a “deathbed marriage.” The State of New Hampshire made their marriage legitimate when it concluded Ms. Donati and Mr. Gabert had been married during the 3 years preceding Mr. Gabert’s death.

Therefore, ruled the Board, OPM must grant the survivor annuity benefits within twenty days. (Donati, Christine J. v. Office of Personnel Management, PH-0843-05-0336-I-1 (October 31, 2006).

In summary, a discussion about marriage can be complex and perhaps unpleasant for the two people involved. The time, effort, money, aggravation and distress that undoubtedly ensued in pursuing this case was probably worse than the unpleasant conversation would have been prior to the death of Mr. Gabert and, if he would have wanted his partner to have had the benefit of his federal employment, a less committed person would not have received the benefits after the initial OPM determination.

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47