When I taught the topic of survivor benefits to brigade and battalion commanders, I received more questions about the following information than any other area. In this third part of my SBP Series, I am going over what spouses receive when a servicemember or retiree passes away. Given the well-documented divorce rates among military members, it’s not surprising that I received so many questions about this topic.
Sending America’s sons and daughters to fight two wars for two decades caused a substantial increase in divorce rates; winding down both conflicts has meant divorce rates have been dropping slowly. It’s probably the most obvious cause and effect statistic I have studied about the military. While divorces have indeed been declining in recent years, this topic is still very relevant to many active duty and retiree populations.
So let’s start the analysis of who gets what with a quick set of introductory enrollment facts I have previously not covered fully on the topic. Servicemembers who retire from the military are offered the opportunity to enroll in the Survivor Benefit Plan (SBP). In practice, servicemembers are offered the opportunity to select to not enroll, but their spouse gets the final say. I have previously covered the basic rules behind SBP and how the lump sum process works. The rules are fairly straight forward, and like most rules – a little boring; however, the drama they induce is not dissimilar to an issue of US Weekly.
To be eligible for spouse only coverage, the intended SBP beneficiary must be a widow or widower who fits one of these three criteria:
(1) married to the servicemember at the time of retirement or death (if death occurs on active duty);
(2) married to the deceased retiree for at least one year prior to the retiree’s death; or
(3) the parent of a child born of a post-retirement marriage.
A surviving spouse (or eligible former spouse) stops receiving SBP benefits if he or she remarries prior to reaching age 55; in other words, if that surviving spouse remarries after he/she turns 55, that spouse continues to receive their SBP payments. I know a few Soldiers who cohabitate with another person and have kids with that individual but have not technically remarried under the law (except defined by the California Supreme Court (in)famous ruling in Marvin v. Marvin, which was the first case I studied in law school where I learned that Courts are able to make up laws as they please). In this instance, these Soldiers will continue to receive SBP payments unless they decide to “make it official.”
If the second marriage is terminated by death, annulment, or divorce, it is possible to reinstate the original SBP benefit. The surviving spouse of two or more deceased military retirees (each a participant in the SBP) can only receive the more financially advantageous benefit.
How to Treat the Ex
A military member may choose, or may be required by a court order, to provide SBP coverage for a former spouse, depending on when the divorce occurred. This election may occur as part of a divorce-related property settlement. For divorces occurring before November 14, 1986, federal law explicitly states that no court was authorized to order a member or retiree to provide SBP protection to a former spouse. If a Retiree voluntarily decides, in writing, to provide benefits to a former spouse, then this decision must be honored by the Retiree.
If a divorce occurs on or after November 14, 1986, however, a court may order a member or Retiree to provide SBP protection as part of, or incident to, a divorce. According to changes in law implemented by the FY1987 DOD Authorization Act (P.L. 99-661 §641), “A court order may require a person to elect (or to enter into an agreement to elect) … to provide an annuity to a former spouse (or to both a former spouse and child).” This does not require courts to make such an order, but it gives them the freedom to do so.
Again, these stipulations offer lots of esoteric legal rules, but there are a lot of real world, Jerry Springer-esque possibilities.