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I am a former spouse of a deceased military member who designated…

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I am a former spouse...
I am a former spouse of a deceased military member who designated me in a court order as the beneficariary of SBP. He was slated and desginated to retire next Decemeber. Does this mean anything for me as far as retirement that was designated and SBP in our court order?
Submitted: 4 years ago.Category: Military Law
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3/3/2014
Military Lawyer: P. Simmons, Military Lawyer replied 4 years ago
P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 37,502
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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Hi, My name is Philip. I am an attorney with over 16 years experience. Hopefully I can help you with your legal question.

Can you tell me, at the time he passed, how many years of active service did he have? Was it over or under 20 years?

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Customer reply replied 4 years ago

over 20 years, 23 to be exact. This happened last friday

Military Lawyer: P. Simmons, Military Lawyer replied 4 years ago
Thank you

Two more questions please

1. Was he remarried ?

2. You mention court order...did the court order him to purchase sbp for you?
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Customer reply replied 4 years ago

yes, he was remarried. 3 years. I was married to him for 15 years. yes, our divorce degree stated that he must keep me as sole beneficiary of the maximum possible benefits under his "survivors" benefits coverage which he has as a result of his Civil service employment, to pay all premiums thereon and to do whatever necessary to assure Wife's continued coverage thereon prior to and subsequent to any divorce which may occur, said coverage to continue until Wife dies unless sooner terminated by law.


 


I have not been remarried.

Military Lawyer: P. Simmons, Military Lawyer replied 4 years ago
Thank you

Just a moment please, I want to pull the regulation up....
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Military Lawyer: P. Simmons, Military Lawyer replied 4 years ago
Sorry for the delay...there are two sections in the US Code that apply.

The first is from Title 10 US Code Section 1448. You can see the law here

http://www.law.cornell.edu/uscode/text/10/1448

This is the law that covers SBP. If you look at paragraph d(3) it provides

(3) Mandatory former spouse annuity.— If a member described in paragraph (1) is required under a court order or spousal agreement to provide an annuity to a former spouse upon becoming eligible to be a participant in the Plan or has made an election under subsection (b) to provide an annuity to a former spouse, the Secretary—
(A) may not pay an annuity under paragraph (1) or (2); but
(B) shall pay an annuity to that former spouse as if the member had been a participant in the Plan and had made an election under subsection (b) to provide an annuity to the former spouse, or in accordance with that election, as the case may be, if the Secretary receives a written request from the former spouse concerned that the election be deemed to have been made in the same manner as provided in section 1450 (f)(3) of this title.


SO you have to then look at Title 10 Section 1450

You can see that here
http://www.law.cornell.edu/uscode/text/10/1450

Take a look at f(3), which provides

(3) Required former spouse election to be deemed to have been made.—
(A) Deemed election upon request by former spouse.— If a person described in paragraph (2) or (3) of section 1448 (b) of this title is required (as described in subparagraph (B)) to elect under section 1448 (b) of this title to provide an annuity to a former spouse and such person then fails or refuses to make such an election, such person shall be deemed to have made such an election if the Secretary concerned receives the following:
(i) Request from former spouse.— A written request, in such manner as the Secretary shall prescribe, from the former spouse concerned requesting that such an election be deemed to have been made.
(ii) Copy of court order or other official statement.— Either—
(I) a copy of the court order, regular on its face, which requires such election or incorporates, ratifies, or approves the written agreement of such person; or
(II) a statement from the clerk of the court (or other appropriate official) that such agreement has been filed with the court in accordance with applicable State law.
(B) Persons required to make election.— A person shall be considered for purposes of subparagraph (A) to be required to elect under section 1448 (b) of this title to provide an annuity to a former spouse if—
(i) the person enters, incident to a proceeding of divorce, dissolution, or annulment, into a written agreement to make such an election and the agreement
(I) has been incorporated in or ratified or approved by a court order, or
(II) has been filed with the court of appropriate jurisdiction in accordance with applicable State law; or
(ii) the person is required by a court order to make such an election.
(C) Time limit for request by former spouse.— An election may not be deemed to have been made under subparagraph (A) in the case of any person unless the Secretary concerned receives a request from the former spouse of the person within one year of the date of the court order or filing involved.
(D) Effective date of deemed election.— An election deemed to have been made under subparagraph (A) shall become effective on the day referred to in section 1448 (b)(3)(E)(ii) of this title.
(4) Former spouse coverage may be required by court order.— A court order may require a person to elect (or to enter into an agreement to elect) under section 1448 (b) of this title to provide an annuity to a former spouse (or to both a former spouse and child).



And this is your problem...that section above that states

Time limit for request by former spouse.— An election may not be deemed to have been made under subparagraph (A) in the case of any person unless the Secretary concerned receives a request from the former spouse of the person within one year of the date of the court order or filing involved.


If you filed this with the military within one year of your divorce? You are protected (you get SBP)

If you did not file? They can deny you SBP (based on that provision in the law that requires you file within 1 year)

I would file regardless...here is information on how to file

http://www.dfas.mil/retiredmilitary/survivors/Retiree-death/sbp.html

But understand that unless you filed with the secretary of the service for which he served in (so if he was Army, with secretary of the army) they (DFAS) can deny your application



I am very sorry to have to bear bad news.

Please let me know if you have more questions. I am happy to help if I can. Otherwise, please rate the answer so I may get credit for my work.



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