A federal employee in a same-sex marriage could not, until the last couple of years, provide a survivor annuity or basic employee death benefit to a same-sex partner.
Two US Supreme Court decisions have made significant changes in recognizing same-sex marriages. Same-sex marriages were not legally recognized until these decisions were issued. As a result, in some cases, a same-sex couple would not be able to meet the requirements for a survivor annuity or an employee death benefit.
In a Federal Register notice, the Office of Personnel Management (OPM) addresses this situation. The notice also explains how a person applying for one of these benefits may now be able to now meet the requirements for receiving one of these benefits.
Meeting Eligibility Requirements for Same-Sex Marriage Applicant
What is necessary for the spouse of a federal employee to establish an entitlement to a survivor annuity or basic employee death benefit (BEDB) either under the older Civil Service Retirement System (CSRS) or the Federal Employees’ Retirement System (FERS)?
A “widow” or “widower” must have been married to a federal employee or annuitant for at least nine months immediately before the employee or annuitant’s death.
Also, with regard to same-sex couples, the Office of Personnel Management is now stating when, and under what circumstances, OPM will consider the 9-month marriage requirement to have been satisfied. There are now more circumstances in which OPM will consider eligibility requirements to have been met and the benefit will be awarded.
The rationale for this is to provide affected applicants with benefits they could have obtained had they been permitted to marry earlier in their states of residence.
Legal Background Impacting Same-Sex Marriages and a Federal Employee Annuity
In 2013, the U.S. Supreme Court issued its decision in the United States v. Windsor.
In this case, the Court found section three of the Defense of Marriage Act (DOMA) to be unconstitutional. The rationale for the decision was that DOMA required the federal government to treat same-sex marriages differently from heterosexual marriages when determining entitlement to federal benefits.
When Is the 9-Month Marriage Requirement Met?
The Windsor decision did not address the question of whether state laws prohibiting the legal recognition of same-sex marriages were also unconstitutional. Then, in 2015, the U.S. Supreme Court issued its decision in the United States v. Obergefell. The Obergefell decision found that state laws prohibiting the legal recognition of same-sex marriages were also unconstitutional.
OPM will consider the 9-month marriage requirement for survivor annuity benefits and/or a basic employee death benefit as having been met under the following conditions:
- The applicant was in a same-sex marriage with a deceased employee or annuitant; and
- But for the 9-month marriage requirement the applicant would be eligible for survivor annuity benefits (and/or a BEDB, if applicable); and
- The applicant was married to the deceased employee or annuitant prior to the Supreme Court issuing Windsor on June 26, 2013; or
- The applicant was married to the deceased employee or annuitant within one year from the date the Supreme Court issued Windsor on June 26, 2013; or
- The applicant was married to the deceased employee or annuitant within one year after the Supreme Court issued Obergefell on June 26, 2015, in circumstances where the couple resided in a jurisdiction that prohibited same-sex marriage at any time after the Supreme Court’s Windsor decision.
Marriage After a Federal Employee’s Retirement
What happens if the person filing for these benefits was married to the deceased annuitant after retirement, and cannot show the annuitant elected a survivor annuity benefit on the applicant’s behalf within two years of marriage?
In this case, an applicant may submit evidence to OPM demonstrating the annuitant intended to elect a survivor annuity for the spouse now applying for benefits and, but for the provisions under DOMA and/or state laws prohibiting same-sex marriage, the annuitant would have timely elected a survivor annuity on the applicant’s behalf.
According to OPM, the agency will consider any documentary evidence for this purpose. The evidence can be in agency files or documentation submitted by the applicant. The evidence should show the federal employee annuitant attempted to elect a survivor annuity for the applicant through correspondence with OPM.
OPM’s Summary of Relevant Dates
Here is the summary from the Office of Personnel Management on the relevant dates that will determine how OPM will make a determination on the benefits under consideration in this notice:
If a same-sex surviving spouse of a deceased federal employee or annuitant is unable to show that the couple was married for at least 9-months immediately before the death of the employee or annuitant, and the marriage occurred before, on, or within one year after the Supreme Court issued Windsor on June 26, 2013 (or occurred within one year after the Supreme Court issued Obergefell on June 26, 2015, in circumstances where the couple resided in a jurisdiction that prohibited same-sex marriage at any time after the issuance of Windsor ), OPM will deem the 9-month marriage requirement satisfied for purposes of establishing entitlement to survivor annuity benefits and/or a BEDB.