No Written Election by the Retiree Results in No Survivor’s Annuity

The widow of a deceased federal annuitant cannot collect a survivor’s annuity because her spouse never elected one for her.

Wiggins v Office of Personnel Management (CAFC No. 2019-1143 (nonprecedential) 11/12/19) contains an all-too familiar fact situation with an all-too predictable outcome. The federal appeals court affirmed the determination by the Office of Personnel Management (OPM) that denied a survivor’s annuity to the widow of a federal retiree because he had never submitted the paperwork to provide for such a survivor’s annuity.

Here are the facts as briefly outlined in the court’s decision. 

Retiree Mr. Wiggins—about a year after his retirement from the Department of the Army—married Mrs. Wiggins. Mr. Wiggins continued to draw his full federal annuity. He did submit to OPM a designation of beneficiary for his lump sum death benefits, naming Mrs. Wiggins and his children as beneficiaries. However, he did not submit paperwork making an election to OPM that would have assured a survivor’s benefit for his new wife. Further, had he done so, he would have received a reduced annuity during his remaining year of retirement up until his death. Several years later Mr. Wiggins died. Mrs. Wiggins submitted a claim for a survivor’s annuity to OPM following her husband’s death. Predictably, OPM denied her claim since her husband had not submitted the required written election form for her to receive the survivor’s annuity. (Opinion pp. 2-3)

In her appeal to the Merit Systems Protection Board (MSPB) challenging OPM’s denial, she argued Mr. Wiggins was mentally not capable of submitting the required election form since he suffered from Post-Traumatic Stress Disorder. On top of that she argued OPM had failed to give Mr. Wiggins notice of the requirement that he submit such a form within 2 years of his marriage. Citing precedent, the MSPB found that waiver of the 2-year deadline could not be based on mental capacity of the annuitant. The Board further concluded that OPM had proved that it provided notice of the election deadline to Mr. Wiggins. In short, the MSPB affirmed OPM’s denial of the survivor’s annuity for Mrs. Wiggins. (p. 3)

The appeals court has now affirmed OPM’s determination. 

Mrs. Wiggins urged the court to overturn the precedent cited by OPM (Schoemakers, 180 F.3d at 1382) and permit waiver of the two-year election requirement in this case. She argued that rigid application of the 2-year rule violates due process and principles of equity. She pointed out that waiver was allowed in a later case when it could be proved the annuitant did not receive adequate notice, so it should be the same with mental impairment situations. The court finds it significant, however, that Mr. Wiggins never submitted a written election to OPM. The court was therefore not persuaded by Mrs. Wiggins’ arguments and sustained OPM’s denial of the survivor’s annuity.

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.