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Electronic Code of Federal Regulations

e-CFR data is current as of February 13, 2020

Title 5Chapter ISubchapter BPart 838Subpart I → §838.912


Title 5: Administrative Personnel
PART 838—COURT ORDERS AFFECTING RETIREMENT BENEFITS
Subpart I—Terminology Used in Court Orders Awarding Former Spouse Survivor Annuities


§838.912   Specifying an award of a former spouse survivor annuity.

(a) To satisfy the requirements of §838.804(b)(2), a court order must specify that it is awarding a former spouse survivor annuity. The court order must contain language such as “survivor annuity,” “death benefits,” “former spouse survivor annuity under 5 U.S.C. 8341(h)(1),” etc.

(b)(1) A court order that provides that the former spouse is to “continue as” or “be named as” the beneficiary of CSRS survivor benefits or similar language satisfies the requirements of §838.804(b)(2).

(2) A court order that requires an employee or retiree to maintain survivor benefits covering the former spouse satisfies the requirements of §838.804(b)(2), if the former spouse was covered by a CSRS or FERS survivor annuity or the FERS basic employee death benefit as defined in §843.102 of this chapter at the time of the divorce.

(c) Two types of potential survivor annuities may be provided by retiring employees to cover former spouses. Under CSRS, section 8341(h) of title 5, United States Code, provides for “former spouse survivor annuities” and section 8339(k) of title 5, United States Code, provides for “insurable interest annuities.” These are distinct benefits, each with its own advantages. The corresponding FERS provisions are sections 8445 and 8444, respectively.

(1) OPM will enforce court orders to provide section 8341(h) or section 8445 annuities. These annuities are less expensive and have fewer restrictions than insurable interest annuities but the former spouse's interest will automatically terminate upon remarriage before age 55. To provide a section 8341(h) or section 8445 annuity, the court order must use terms such as “former spouse survivor annuity,” “section 8341(h) annuity,” or “survivor annuity.”

(2) OPM cannot enforce court orders to provide “insurable interest annuities” under section 8339(k) or section 8444. These annuities may only be elected at the time of retirement by a retiring employee who is not retiring under the disability provision of the law and who is in good health. The retirees may also elect to cancel the insurable interest annuity to provide a survivor annuity for a spouse acquired after retirement. The parties might seek to provide this type of annuity interest if the nonemployee spouse expects to remarry before age 55, if the employee expects to remarry a younger second spouse before retirement or if another former spouse has already been awarded a section 8341(h) annuity. However, the court will have to provide its own remedy if the employee is not eligible for or does not make the election. OPM cannot enforce the court order. Language including the words “insurable interest” or referring to section 8339(k) or section 8444 does not satisfy the requirements of §838.804(b)(2).

(3) In court orders which contain internal contradictions about the type of annuity, such as “insurable interest annuity under section 8341(h),” the section reference will control.

[57 FR 33574, July 29, 1992, as amended at 58 FR 43493, Aug. 17, 1993]

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