OPM to Offer Same-Sex Spouses Another Chance at Survivor Benefits

The Office of Personnel Management is set to announce that it will waive some rules governing who is eligible for survivor benefits for same-sex spouses.

In a notice set to be published Wednesday in the Federal Register, OPM said it will waive the requirement that a same-sex widow or widower of a federal employee or retiree be married for at least nine months before the employee or retiree dies in order to receive benefits in some instances.

OPM originally began allowing federal employees’ same-sex spouses to receive survivor benefits through the Federal Employees Retirement System and the Civil Service Retirement System in the 2010s, following the Supreme Court decisions in United States v. Windsor, which struck down a portion of the Defense of Marriage Act, and United States v. Obergefell, which found state laws prohibiting same-sex marriage to be unconstitutional.

But OPM’s regulations governing the eligibility of same-sex spouses for survivor benefits failed to account for the fact that in some cases, a spouse may not be able to meet the requirement that a couple be married for nine months before the federal employee or retiree died to access those benefits because they did not live in a state that recognized same-sex marriages.

“In both [prior] 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,” OPM wrote. “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 nine-month marriage requirement satisfied . . . for the purposes of determining an applicant’s entitlement to survivor annuity benefits.”

Under the new notice, the same-sex widow or widower of a federal employee will be eligible for survivor benefits if they would have been eligible without the nine-month requirement and they were married prior to June 26, 2013, got married within a year of June 26, 2013, or if they got married within a year after June 26, 2015 and lived in a state that prohibited same-sex marriage any time after the Windsor decision in 2013.

In the case of a widow or widower who married someone who was already a retired federal employee but is unable to prove that the retiree elected a survivor annuity benefit for their spouse within two years, OPM will loosen the requirements, merely requiring “any documentary evidence” showing “that the annuitant attempted to elect a survivor annuity for the applicant through correspondence with OPM.”