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Same-Sex Marriage SBP

On June 26, 2013, the U.S. Supreme Court determined certain parts of Defense of Marriage Act (DOMA) of 1996 were unconstitutional.  As a result of this decision, the Federal Government now recognizes same-sex marriages which are legally performed under state law.  On September 5, 2013, the Department of Defense (DoD) issued implementing guidance extending Survivor Benefit Plan (SBP) coverage to same-sex spouses of military members and retirees.  In short, same-sex marriages that are valid in the state where performed will be recognized as valid for SBP purposes.  The implementing guidance does not apply to civil unions or domestic partnerships. It is the responsibility of the retiree to provide documentation of existence of valid marriage under applicable state law. The guidance issued at that time is still applicable to those retirees.

On June 26, 2015 the Supreme Court determined that states are required to issue marriage licenses to two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. Consequently, a valid marriage certificate issued by any state on or after June 26, 2015 will be recognized as valid for SBP purposes.

The DoD guidance generally provides that effective June 26, 2013, any person who is married to a same-sex partner may participate in the SBP in the same manner as any other married person.  This includes the requirement for spousal concurrence for certain elections.  The DoD guidance can be read in full here.  The below is not a full restatement of the guidance, and is not intended to replace the guidance:

 

  • 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. Effective June 26, 2015, there is no need to determine if any particular state permits same sex marriage. Any marriage license issued from a state is presumed valid.

 

  • 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).

 

          Note: Any person eligible to participate (either already retired and receiving retired pay or in receipt of a 20-year letter and awaiting pay), who was not married at the time they become eligible to participate and who marries after June 26, 2015, has one year from the date of the marriage to enter a spousal election for SBP purposes.