[Federal Register Volume 86, Number 219 (Wednesday, November 17, 2021)]
[Notices]
[Pages 64234-64235]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-24792]


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OFFICE OF PERSONNEL MANAGEMENT


Civil Service Retirement System and Federal Employees' Retirement 
System; Notice to Same-Sex Spouses of Deceased Federal Employees or 
Annuitants Whose Marriages Lasted Less Than Nine Months

AGENCY: Office of Personnel Management.

ACTION: Notice.

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SUMMARY: To establish entitlement to a survivor annuity or basic 
employee death benefit (``BEDB'') under the Civil Service Retirement 
System (CSRS) and the Federal Employees' Retirement System (FERS), a 
``widow'' or ``widower'' must have been married to a federal employee 
or annuitant for at least 9 months immediately before the employee or 
annuitant's death. Same-sex spouses of deceased federal employees or 
annuitants whose spouse died prior to the time the 9-month marriage 
requirement could be satisfied may have been prevented or frustrated 
from satisfying this eligibility requirement as a result of provisions 
enacted under the Defense of Marriage Act (DOMA) or state laws 
prohibiting same sex marriages, now understood to have been 
unconstitutional. Therefore, this notice provides information about 
when, and under what circumstances, OPM will deem the 9-month marriage 
requirement satisfied, notwithstanding the actual duration of the 
marriage, to provide affected applicants with benefits they could have 
obtained had they been permitted to marry earlier in their states of 
residence.

DATES: 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.

FOR FURTHER INFORMATION CONTACT: Alison Pastor, (202) 606-0299.

SUPPLEMENTARY INFORMATION: On June 26, 2013, the U.S. Supreme Court 
issued United States v. Windsor,\1\ where it struck down section 3 of 
Defense of Marriage Act (DOMA), 1 U.S.C. 7 (1996), as unconstitutional 
inasmuch as it required the Federal Government to treat same-sex 
marriages differently from opposite-sex marriages for purposes of 
determining entitlement to federal benefits. The Windsor decision, 
however, did not address whether state laws prohibiting the legal 
recognition of same-sex marriages were similarly unconstitutional. As a 
result, there was a period after Windsor where some jurisdictions 
allowed for the legal recognition of same-sex marriages and some did 
not. Thereafter, the U.S. Supreme Court issued United States v. 
Obergefell on June 26, 2015 \2\ striking down state laws that 
prohibited the legal recognition of same-sex marriages as 
unconstitutional.
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    \1\ See 570 U.S. 744 (2013).
    \2\ See 576 U.S. 644 (2015).
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    After the U.S. Supreme Court issued Windsor, OPM published two 
Federal Register notices. The first notice, 78 FR 47018 (Aug. 2, 2013), 
informed affected annuitants that they had an extended opportunity, 
until June 26, 2015--or two years after Windsor was issued--to elect a 
survivor annuity for a same-sex spouse if the couple had married prior 
to Windsor and the annuitant had been prevented by section 3 of DOMA 
from making a timely election. The second notice, 79 FR 57589 (Sept. 
25, 2014), informed same-sex surviving spouses of deceased federal 
employees or annuitants who died before Windsor, that they may apply 
for survivor benefits or re-apply (if previously denied benefits as a 
result of DOMA) so that OPM may process their applications in 
accordance with the Windsor decision. In both these notices, OPM 
indicated that for purposes of determining entitlement to federal 
retirement benefits, OPM would recognize same-sex marriages legally 
entered into, whether or not the affected individual's domicile would 
legally recognize that marriage.
    Thus, consistent with OPM's prior Federal Register notices and 
consistent with the holdings in Windsor and Obergefell, OPM is 
providing this notice to affected same-sex surviving spouses of 
deceased Federal employees or annuitants regarding when and under what 
circumstances OPM will deem the 9-month marriage requirement satisfied 
under 5 U.S.C. 8341(a), 8441(1)-(2) for purposes of determining an 
applicant's entitlement to survivor annuity benefits and/or (if 
applicable) to a BEDB:
    If an applicant for survivor annuity benefits and/or a BEDB can 
show--

     The applicant was in a same-sex marriage with a deceased 
employee or annuitant; and
     But for the 9-month marriage requirement under 5 U.S.C. 
8341(a) and 8441(1)-(2), 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

[[Page 64235]]

     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 
Windsor

--OPM will deem the 9-month marriage requirement satisfied for purposes 
of determining entitlement to survivor annuity benefits and/or a BEDB.
    Additionally, if an affected applicant (as indicated above) was 
married to the deceased annuitant after retirement, and is additionally 
unable to show that the annuitant elected a survivor annuity benefit on 
the applicant's behalf within 2 years of marriage, as required by 5 
U.S.C. 8341(b)(3), 8339(j)(5)(C) and (k)(2), 8416(b)-(c), and 
8442(a)(2), the applicant may submit evidence to OPM showing that the 
annuitant intended to elect a survivor annuity for the applicant, and 
that 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. OPM will consider any documentary 
evidence for this purpose, either in its own files or submitted by the 
applicant, that shows that the annuitant attempted to elect a survivor 
annuity for the applicant through correspondence with OPM.
    Determinations regarding an affected applicant's corresponding 
entitlement to Federal Employees Health Benefits (FEHB) will be 
governed by the provisions under chapter 89 of title 5, United States 
Code; part 890 of title 5, Code of Federal Regulations; and the 
guidance OPM published in its Federal Register notice, Post-DOMA 
Survivor Annuitant Federal Health Benefit Waiver Criteria, 80 FR 74,817 
(Nov. 30, 2015).
    How To Apply for Benefits: If you are an affected same-sex spouse 
of a deceased federal employee or annuitant, you may submit an 
application for death benefits to OPM, Standard Form (SF) 2800 for CSRS 
and SF 3104 for FERS (or you may resubmit an application if OPM 
previously denied you survivor annuity benefits or a BEDB because you 
could not establish you had met the 9-month marriage requirement). You 
may download these application forms from OPM's website at http://www.opm.gov/forms/standard-forms/, and may submit your applications to 
this address: Office of Personnel Management, Attention: DOMA-9MMR, 
P.O. Box 45, Boyers, PA 16017-0045. If, in the alternative, you would 
prefer OPM mail you an application for benefits or if you have 
questions regarding submitting your application, you may write OPM 
using the address provided above, or you may call OPM's Retirement 
Information Office at 1-888-767-6738 or may send an email to 
[email protected].

Office of Personnel Management.
Alexys Stanley,
Regulatory Affairs Analyst.
[FR Doc. 2021-24792 Filed 11-16-21; 8:45 am]
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