Open Enrollment Period To Expire Soon For Same-Sex Couples’ Survivor Benefits – Lawyers With Purpose

In compliance with the repeal of the Defense of Marriage Act, the Department of Defense (DoD) has opened enrollment for the Survivor Benefit Plan (SBP) to retired military personnel who are gay and married.  The Survivor Benefit Plan is income that a widow receives when that person's retired military spouse dies. It replaces, up to 55%, the pension the retiree was receiving prior to death. When the military retiree dies, the pension terminates. Without the SBP, the widow could face financial hardship.

Enrollment in the program is not automatic. Retirees or their widows must act before June 25, 2014 to participate in the SBP Open Enrollment Window. 

DoD guidance is as follows:

• Any claims to SBP spouse coverage for same-sex spouses of eligible participants of the SBP for periods before June 26, 2013, are not valid, as the Defense of Marriage Act was still the law and in effect prior to June 26, 2013.  As a result, no SBP premiums for such coverage will be charged prior to that date.  Further, no SBP annuity payments for such coverage will be paid for deaths occurring before that date.

• Effective from June 26, 2013, a person who becomes eligible to participate under 10 U.S.C. 1448 (a)(1) and is married to a same-sex partner shall have the SBP program applied as for any other married couple under section 10 U.S.C. 1448, including the requirements for spousal consent for less than full annuity coverage of the spouse.

• A person who was married to a same-sex partner upon becoming eligible to participate in the plan prior to June 26, 2013, and who had married that same-sex partner before June 26, 2013, shall have one year from June 26, 2013, to make a spouse election under 10 U.S.C. 1448(a)(3).  Such person may not participate at less than maximum coverage described in 10 U.S.C. 1448(a)(3) without the concurrence of the person’s spouse unless they already had provided an annuity for a dependent child.  If an election is not received on or before June 25, 2014, full spousal coverage shall be entered and the member shall be responsible for payment of premiums effective from June 26, 2013.

• A person who is married to a same-sex partner on June 26, 2013 and has insurable interest coverage under the SBP may terminate the insurable interest coverage and elect spouse coverage.  This election must be received on or before June 25, 2014. 

• A person who was not married upon becoming eligible to participate in the plan, but who married a same-sex partner before June 26, 2013, shall have one year from June 26, 2013, to make a spouse election under 10 U.S.C. 1448(a)(5).  The election must be received on or before June 25, 2014, or the person shall be prohibited by law from making such election.

• Generally, a person who is a participant in the plan and is providing coverage under the SBP for a spouse, who later does not have an eligible spouse beneficiary may, under 10 U.S.C. 1448(a)(6), elect not to provide coverage for a new spouse in the event of a remarriage. 

• For a person who enters into a same-sex marriage after June 26, 2013, the election to discontinue participation under 10 U.S.C. 1448(a)(6) must be made within one year of the remarriage.  If a member does not discontinue participation, then pursuant to 10 U.S.C. 1448(a)(6), spouse coverage will resume effective on the first anniversary of the marriage. 

• If the remarriage took place prior to June 26, 2013, the participant has one year from June 26, 2013 to elect out of SBP.  If a member does not make such an election within one year of June 26, 2013, then pursuant to section 10 U.S.C. 1448(a)(6), spouse coverage will resume effective no earlier than June 25, 2014.

• Additionally, any such person falling within the parameters of section 10 U.S.C. 1448(g), shall have one year from June 26, 2013, or the date of any marriage subsequent to that date, to elect to increase the level of coverage under 10 U.S.C.  1448(g).

Now that marriage rights are recognized, more benefits are becoming available. However, some, like SBP, have open enrollment periods and deadlines to receive the benefits. To protect your spouse, ACT NOW.  Lawyers may want to send a letter to all of their clients advising them of this change.

Victoria L. Collier is a Veteran and Certified Elder Law Attorney, Fellow of the National Academy of Elder Law Attorneys, Co-Founder of Lawyers With Purpose LLC, and author of “47 Secret Veterans’ Benefits for Seniors—Benefits You Have Earned … but Don’t Know About.”