Will The 2nd Wife of a Retired Federal Employee Receive An Annuity? Not in This Case

he second wife of a Federal retiree who remarried after his first wife died has lost her battle to convince the government that she was entitled to a survivor’s annuity.

The widow of a Federal retiree has lost her battle to convince the Office of Personnel Management, then the Merit Systems Protection Board, and now an appeals court that she was entitled to a survivor’s annuity. (Miller v. Office of Personnel Management, C.A.F.C. No. 2010-3170 (nonprecedential), 1/18/11)

These are the facts as gleaned from the court’s opinion: Sandra Miller of Blue Eye, Missouri was the second wife of Frank Miller. When he retired from the Federal Government in 1984, Frank elected a survivor’s annuity for his first wife, Betty Miller.

Betty died in 2001 and Frank married Sandra a year later. Under OPM rules, Frank had two years after his remarriage to elect a survivor annuity for the new Mrs. Miller, but apparently he did not. He did sign a Designation of Beneficiary Form (SF-2808) designating that his new wife would receive any accrued annuity payable upon his death. Unfortunately for Sandra Miller, this form does not have anything to do with survivor annuity elections. Frank apparently also added Sandra to his Federal health insurance.

When Frank died in 2008 Sandra Miller applied to receive a survivor annuity, but OPM denied her application since it had no record whatsoever that Frank had elected this option.

Sandra took her case to the Merit Systems Protection Board (MSPB), but since she could not prove that her husband had made the required election, the Board affirmed the decision from the Office of Personnel Management (OPM). Sandra took her case to the appeals court and has now fared no better.

While the law does not require any particular form for electing a survivor’s annuity, the court points out that it does require something in writing signed by the annuitant. Sandra argued that she was certain Frank had signed and filed the appropriate paperwork with OPM within the required two-year period and that the only logical explanation was that OPM had lost it.

Unfortunately, she could not point to one shred of evidence to support her theory. Both the Board and the appeals court pointed out that Mrs. Miller’s story “has evolved over time and that her two earlier stories contradict her new argument that she saw Mr. Miller timely submit a proper election.” (Opinion pp. 4-5)

The long and short of this case is that Mrs. Miller will not receive a survivor’s annuity. This should be food for thought for any retiree who has remarried–make sure the paperwork reflecting your wishes is timely and in order.

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.