A survivor annuity on a military or federal pension should be spelled out in the decree, with the paperwork filed in time, or the former spouse can lose it.
The Election Has a Deadline
In King v. King, 225 Ga. App. 298 (1997), a 1985 decree incorporated an agreement giving an Air Force retiree’s former wife his Survivor Benefit Plan annuity. As the Court of Appeals described the federal statute, he had to elect in writing within a year of the divorce, and if he did not, she could request a “deemed election” herself. Neither did, and when he died the Air Force paid his widow. The trial court ruled for the former wife; the Court of Appeals reversed because the federal plan controlled.
Say It Expressly
In Howard v. Howard, 302 Ga. 451 (2017), the agreement gave the wife half “of the total monthly benefits paid out for the duration of the plan” from her husband’s military pension but never mentioned the survivor benefit. The Georgia Supreme Court affirmed the denial of her contempt motion because the agreement was ambiguous on that point, leaving her entitlement for the trial court to decide.
Nor can the benefit be added later. In Coffey v. Alembik, 221 Ga. App. 501 (1996), a woman’s 1985 divorce decree said nothing about a survivor annuity on her former husband’s federal civil service pension. A consent order adding one was entered the day he died, and the claim was refused under federal regulations requiring such an order before the employee’s retirement or death, or as the first order ending the marriage. When she sued her lawyers for the delay, the Court of Appeals affirmed summary judgment for them: no valid order could have added the annuity, because that would modify the decree’s division of property.
Our post on protecting alimony if your ex dies first covers survivor benefits awarded as alimony.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!