10 USC 1448 - Application of Plan

U.S Code last checked for updates: Nov 22, 2024

§ 1448.

Application of Plan

(a)

General Rules for Participation in the Plan.—

(1)

Name of plan; eligible participants.—

The program established by this subchapter shall be known as the Survivor Benefit Plan. The following persons are eligible to participate in the Plan:

(A)

Persons entitled to retired pay.

(B)

Persons who would be eligible for reserve-component retired pay but for the fact that they are under 60 years of age.

(2)

Participants in the plan.—

The Plan applies to the following persons, who shall be participants in the Plan:

(A)

Standard annuity participants.—

A person who is eligible to participate in the Plan under paragraph (1)(A) and who is married or has a dependent child when he becomes entitled to retired pay, unless he elects (with his spouse’s concurrence, if required under paragraph (3)) not to participate in the Plan before the first day for which he is eligible for that pay.

(B)

Reserve-component annuity participants.—

A person who (i) is eligible to participate in the Plan under paragraph (1)(B), and (ii) is married or has a dependent child when he is notified under section 12731(d) of this title that he has completed the years of service required for eligibility for reserve-component retired pay, unless the person elects (with his spouse’s concurrence, if required under paragraph (3)) not to participate in the Plan before the end of the 90-day period beginning on the date on which he receives that notification.

A person who elects under subparagraph (B) not to participate in the Plan remains eligible, upon reaching 60 years of age and otherwise becoming entitled to retired pay, to participate in the Plan in accordance with eligibility under paragraph (1)(A).

(3)

Elections.—

(A)

Spousal consent for certain elections respecting standard annuity.—

A married person who is eligible to provide a standard annuity may not without the concurrence of the person’s spouse elect—

(i)

not to participate in the Plan;

(ii)

to provide an annuity for the person’s spouse at less than the maximum level; or

(iii)

to provide an annuity for a dependent child but not for the person’s spouse.

(B)

Spousal consent for certain elections respecting reserve-component annuity.—

A married person who is eligible to provide a reserve-component annuity may not without the concurrence of the person’s spouse elect—

(i)

not to participate in the Plan;

(ii)

to designate under subsection (e)(2) the effective date for commencement of annuity payments under the Plan in the event that the member dies before becoming 60 years of age to be the 60th anniversary of the member’s birth (rather than the day after the date of the member’s death);

(iii)

to provide an annuity for the person’s spouse at less than the maximum level; or

(iv)

to provide an annuity for a dependent child but not for the person’s spouse.

(C)

Exception when spouse unavailable.—

A person may make an election described in subparagraph (A) or (B) without the concurrence of the person’s spouse if the person establishes to the satisfaction of the Secretary concerned—

(i)

that the spouse’s whereabouts cannot be determined; or

(ii)

that, due to exceptional circumstances, requiring the person to seek the spouse’s consent would otherwise be inappropriate.

(D)

Construction with former spouse election provisions.—

This paragraph does not affect any right or obligation to elect to provide an annuity for a former spouse (or for a former spouse and dependent child) under subsection (b)(2).

(E)

Notice to spouse of election to provide former spouse annuity.—

If a married person who is eligible to provide a standard annuity elects to provide an annuity for a former spouse (or for a former spouse and dependent child) under subsection (b)(2), that person’s spouse shall be notified of that election.

(4)

Irrevocability of elections.—

(A)

Standard annuity.—

An election under paragraph (2)(A) is irrevocable if not revoked before the date on which the person first becomes entitled to retired pay.

(B)

Reserve-component annuity.—

An election under paragraph (2)(B) is irrevocable if not revoked before the end of the 90-day period referred to in that paragraph.

(5)

Participation by person marrying after retirement, etc.—

(A)

Election to participate in plan.—

A person who is not married and has no dependent child upon becoming eligible to participate in the Plan but who later marries or acquires a dependent child may elect to participate in the Plan.

(B)

Manner and time of election.—

Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child.

(C)

Limitation on revocation of election.—

Such an election may not be revoked except in accordance with subsection (b)(3).

(D)

Effective date of election.—

The election is effective as of the first day of the first calendar month following the month in which the election is received by the Secretary concerned.

(E)

Designation if rcsbp election.—

In the case of a person providing a reserve-component annuity, such an election shall include a designation under subsection (e).

(6)

Election out of plan by person with spouse coverage who remarries.—

(A)

General rule.—

A person—

(i)

who is a participant in the Plan and is providing coverage under the Plan for a spouse (or a spouse and child);

(ii)

who does not have an eligible spouse beneficiary under the Plan; and

(iii)

who remarries,

may elect not to provide coverage under the Plan for the person’s spouse.

(B)

Effect of election on retired pay.—

If such an election is made, reductions in the retired pay of that person under section 1452 of this title shall not be made.

(C)

Terms and conditions of election.—

An election under this paragraph—

(i)

is irrevocable;

(ii)

shall be made within one year after the person’s remarriage; and

(iii)

shall be made in such form and manner as may be prescribed in regulations under section 1455 of this title.

(D)

Notice to spouse.—

If a person makes an election under this paragraph—

(i)

not to participate in the Plan;

(ii)

to provide an annuity for the person’s spouse at less than the maximum level; or

(iii)

to provide an annuity for a dependent child but not for the person’s spouse,

the person’s spouse shall be notified of that election.

(E)

Construction with former spouse election provisions.—

This paragraph does not affect any right or obligation to elect to provide an annuity to a former spouse under subsection (b).

(b)

Insurable Interest and Former Spouse Coverage.—

(1)

Coverage for person with insurable interest.—

(A)

General rule.—

A person who is not married and does not have a dependent child upon becoming eligible to participate in the Plan may elect to provide an annuity under the Plan to a natural person with an insurable interest in that person. In the case of a person providing a reserve-component annuity, such an election shall include a designation under subsection (e).

(B)

Termination of coverage.—

An election under subparagraph (A) for a beneficiary who is not the former spouse of the person providing the annuity may be terminated. Any such termination shall be made by a participant by the submission to the Secretary concerned of a request to discontinue participation in the Plan, and such participation in the Plan shall be discontinued effective on the first day of the first month following the month in which the request is received by the Secretary concerned. Effective on such date, the Secretary concerned shall discontinue the reduction being made in such person’s retired pay on account of participation in the Plan or, in the case of a person who has been required to make deposits in the Treasury on account of participation in the Plan, such person may discontinue making such deposits effective on such date.

(C)

Form for discontinuation.—

A request under subparagraph (B) to discontinue participation in the Plan shall be in such form and shall contain such information as may be required under regulations prescribed by the Secretary of Defense.

(D)

Withdrawal of request for discontinuation.—

The Secretary concerned shall furnish promptly to each person who submits a request under subparagraph (B) to discontinue participation in the Plan a written statement of the advantages and disadvantages of participating in the Plan and the possible disadvantages of discontinuing participation. A person may withdraw the request to discontinue participation if withdrawn within 30 days after having been submitted to the Secretary concerned.

(E)

Consequences of discontinuation.—

Once participation is discontinued, benefits may not be paid in conjunction with the earlier participation in the Plan and premiums paid may not be refunded. Participation in the Plan may not later be resumed except through a qualified election under paragraph (5) of subsection (a) or under subparagraph (G) of this paragraph.

(F)

Vitiation of election by disability retiree who dies of disability-related cause.—

If a member retired after November 23, 2003, under chapter 61 of this title dies within one year after the date on which the member is so retired and the cause of death is related to a disability for which the member was retired under that chapter (as determined under regulations prescribed by the Secretary of Defense)—

(i)

an election made by the member under paragraph (1) to provide an annuity under the Plan to any person other than a dependent of that member (as defined in section 1072(2) of this title) is vitiated; and

(ii)

the amounts by which the member’s retired pay was reduced under section 1452 of this title shall be refunded and paid to the person to whom the annuity under the Plan would have been paid pursuant to such election.

(G)

Election of new beneficiary upon death of previous beneficiary.—

(i)

Authority for election.—

If the reason for discontinuation in the Plan is the death of the beneficiary, the participant in the Plan may elect a new beneficiary. Any such beneficiary must be a natural person with an insurable interest in the participant. Such an election may be made only during the 180-day period beginning on the date of the death of the previous beneficiary.

(ii)

Procedures.—

Such an election shall be in writing, signed by the participant, and made in such form and manner as the Secretary concerned may prescribe. Such an election shall be effective the first day of the first month following the month in which the election is received by the Secretary.

(iii)

Vitiation of election by participant who dies within two years of election.—

If a person providing an annuity under a election under clause (i) dies before the end of the two-year period beginning on the effective date of the election—

(I)

the election is vitiated; and

(II)

the amount by which the person’s retired pay was reduced under section 1452 of this title that is attributable to the election shall be paid in a lump sum to the person who would have been the deceased person’s beneficiary under the vitiated election if the deceased person had died after the end of such two-year period.

(2)

Former spouse coverage upon becoming a participant in the plan.—

(A)

General rule.—

A person who has a former spouse upon becoming eligible to participate in the Plan may elect to provide an annuity to that former spouse.

(B)

Effect of former spouse election on spouse or dependent child.—

In the case of a person with a spouse or a dependent child, such an election prevents payment of an annuity to that spouse or child (other than a child who is a beneficiary under an election under paragraph (4)), including payment under subsection (d).

(C)

Designation if more than one former spouse.—

If there is more than one former spouse, the person shall designate which former spouse is to be provided the annuity.

(D)

Designation if rcsbp election.—

In the case of a person providing a reserve-component annuity, such an election shall include a designation under subsection (e).

(3)

Former spouse coverage by persons already participating in plan.—

(A)

Election of coverage.—

(i)

Authority for election.—

A person—

(I)

who is a participant in the Plan and is providing coverage for a spouse or a spouse and child (even though there is no beneficiary currently eligible for such coverage), and

(II)

who has a former spouse who was not that person’s former spouse when that person became eligible to participate in the Plan,

may (subject to subparagraph (B)) elect to provide an annuity to that former spouse.

(ii)

Termination of previous coverage.—

Any such election terminates any previous coverage under the Plan.

(iii)

Manner and time of election.—

Any such election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date of the decree of divorce, dissolution, or annulment.

(B)

Limitation on election.—

A person may not make an election under subparagraph (A) to provide an annuity to a former spouse who that person married after becoming eligible for retired pay unless—

(i)

the person was married to that former spouse for at least one year, or

(ii)

that former spouse is the parent of issue by that marriage.

(C)

Irrevocability, etc.—

An election under this paragraph may not be revoked except in accordance with section 1450(f) of this title. This paragraph does not provide the authority to change a designation previously made under subsection (e).

(D)

Notice to spouse.—

If a person who is married makes an election to provide an annuity to a former spouse under this paragraph, that person’s spouse shall be notified of the election.

(E)

Effective date of election.—

An election under this paragraph is effective as of—

(i)

the first day of the first month following the month in which the election is received by the Secretary concerned; or

(ii)

in the case of a person required (as described in section 1450(f)(3)(B) of this title) to make the election by reason of a court order or filing the date of which is after October 16, 1998, the first day of the first month which begins after the date of that court order or filing.

(4)

Former spouse and child coverage.—

A person who elects to provide an annuity for a former spouse under paragraph (2) or (3) may, at the time of the election, elect to provide coverage under that annuity for both the former spouse and a dependent child, if the child resulted from the person’s marriage to that former spouse.

(5)

Disclosure of whether election of former spouse coverage is required.—

A person who elects to provide an annuity to a former spouse under paragraph (2) or (3) shall, at the time of making the election, provide the Secretary concerned with a written statement (in a form to be prescribed by that Secretary and signed by such person and the former spouse) setting forth—

(A)

whether the election is being made pursuant to the requirements of a court order; or

(B)

whether the election is being made pursuant to a written agreement previously entered into voluntarily by such person as a part of, or incident to, a proceeding of divorce, dissolution, or annulment and (if so) whether such voluntary written agreement has been incorporated in, or ratified or approved by, a court order.

(6)

Special needs trusts for sole benefit of certain dependent children.—

A person who has established a supplemental or special needs trust under subparagraph (A) or (C) of section 1917(d)(4) of the Social Security Act (42 U.S.C. 1396p(d)(4)) for the sole benefit of a dependent child considered disabled under section 1614(a)(3) of that Act (42 U.S.C. 1382c(a)(3)) who is incapable of self-support because of mental or physical incapacity may elect to provide an annuity to that supplemental or special needs trust.

(7)

Effect of death of former spouse beneficiary.—

(A)

Termination of participation in plan.—

A person who elects to provide an annuity to a former spouse under paragraph (2) or (3) and whose former spouse subsequently dies is no longer a participant in the Plan, effective on the date of death of the former spouse.

(B)

Authority for election of new spouse beneficiary.—

If a person’s participation in the Plan is discontinued by reason of the death of a former spouse beneficiary, the person may elect to resume participation in the Plan and to elect a new spouse beneficiary as follows:

(i)

Married on the date of death of former spouse.—

A person who is married at the time of the death of the former spouse beneficiary may elect to provide coverage to that person’s spouse. Such an election must be received by the Secretary concerned within one year after the date of death of the former spouse beneficiary.

(ii)

Marriage after death of former spouse beneficiary.—

A person who is not married at the time of the death of the former spouse beneficiary and who later marries may elect to provide spouse coverage. Such an election must be received by the Secretary concerned within one year after the date on which that person marries.

(C)

Effective date of election.—

The effective date of election under this paragraph shall be as follows:

(i)

An election under subparagraph (B)(i) is effective as of the first day of the first calendar month following the death of the former spouse beneficiary.

(ii)

An election under subparagraph (B)(ii) is effective as of the first day of the first calendar month following the month in which the election is received by the Secretary concerned.

(D)

Level of coverage.—

A person making an election under subparagraph (B) may not reduce the base amount previously elected.

(E)

Procedures.—

An election under this paragraph shall be in writing, signed by the participant, and made in such form and manner as the Secretary concerned may prescribe.

(F)

Irrevocability.—

An election under this paragraph is irrevocable.

(c)

Persons on Temporary Disability Retired List.—

The application of the Plan to a person whose name is on the temporary disability retired list terminates when his name is removed from that list and he is no longer entitled to disability retired pay.

(d)

Coverage for Survivors of Members Who Die on Active Duty.—

(1)

Surviving spouse annuity.—

Except as provided in paragraph (2)(B),1

 See References in Text note below.

the Secretary concerned shall pay an annuity under this subchapter to the surviving spouse of—

(A)

a member who dies while on active duty after—

(i)

becoming eligible to receive retired pay;

(ii)

qualifying for retired pay except that the member has not applied for or been granted that pay; or

(iii)

completing 20 years of active service but before the member is eligible to retire as a commissioned officer because the member has not completed 10 years of active commissioned service; or

(B)

a member not described in subparagraph (A) who dies in line of duty while on active duty.

(2)

Dependent children.—

In the case of a member described in paragraph (1), the Secretary concerned shall pay an annuity under this subchapter to the member’s dependent children under subsection (a)(2) or (a)(4) of section 1450 of this title as applicable.

(3)

Mandatory former spouse annuity.—

If a member described in paragraph (1) is required under a court order or spousal agreement to provide an annuity to a former spouse upon becoming eligible to be a participant in the Plan or has made an election under subsection (b) to provide an annuity to a former spouse, the Secretary—

(A)

may not pay an annuity under paragraph (1) or (2); but

(B)

shall pay an annuity to that former spouse as if the member had been a participant in the Plan and had made an election under subsection (b) to provide an annuity to the former spouse, or in accordance with that election, as the case may be, if the Secretary receives a written request from the former spouse concerned that the election be deemed to have been made in the same manner as provided in section 1450(f)(3) of this title.

(4)

Priority.—

An annuity that may be provided under this subsection shall be provided in preference to an annuity that may be provided under any other provision of this subchapter on account of service of the same member.

(5)

Computation.—

The amount of an annuity under this subsection is computed under section 1451(c) of this title.

(6)

Deemed election.—

(A)

Annuity for dependent.—

In the case of a member described in paragraph (1) who dies after November 23, 2003, the Secretary concerned may, if no other annuity is payable on behalf of the member under this subchapter, pay an annuity to a natural person who has an insurable interest in such member as if the annuity were elected by the member under subsection (b)(1). The Secretary concerned may pay such an annuity under this paragraph only in the case of a person who is a dependent of that member (as defined in section 1072(2) of this title).

(B)

Computation of annuity.—

An annuity under this subparagraph shall be computed under section 1451(b) of this title as if the member had retired for total disability on the date of death with reductions as specified under section 1452(c) of this title, as applicable to the ages of the member and the natural person with an insurable interest.

(e)

Designation for Commencement of Reserve-Component Annuity.—

In any case in which a person is required to make a designation under this subsection, the person shall designate whether, in the event he dies before becoming 60 years of age, the annuity provided shall become effective on—

(1)

the day after the date of his death; or

(2)

the 60th anniversary of his birth.

(f)

Coverage of Survivors of Persons Dying When or Before Eligible To Elect Reserve-Component Annuity.—

(1)

Surviving spouse annuity.—

The Secretary concerned shall pay an annuity under this subchapter to the surviving spouse of a person who—

(A)

is eligible to provide a reserve-component annuity and dies—

(i)

before being notified under section 12731(d) of this title that he has completed the years of service required for eligibility for reserve-component retired pay; or

(ii)

during the 90-day period beginning on the date he receives notification under section 12731(d) of this title that he has completed the years of service required for eligibility for reserve-component retired pay if he had not made an election under subsection (a)(2)(B) to participate in the Plan; or

(B)

is a member of a reserve component not described in subparagraph (A) and dies from an injury or illness incurred or aggravated in the line of duty during inactive-duty training.

(2)

Dependent children annuity.—

(A)

Annuity when no eligible surviving spouse.—

In the case of a person described in paragraph (1), the Secretary concerned shall pay an annuity under this subchapter to the dependent children of that person under section 1450(a)(2) of this title as applicable.

(B)

Optional annuity when there is an eligible surviving spouse.—

The Secretary may pay an annuity under this subchapter to the dependent children of a person described in paragraph (1) under section 1450(a)(3) of this title, if applicable, instead of paying an annuity to the surviving spouse under paragraph (1), if the Secretary concerned, in consultation with the surviving spouse, determines it appropriate to provide an annuity for the dependent children under this paragraph instead of an annuity for the surviving spouse under paragraph (1).

(3)

Mandatory former spouse annuity.—

If a person described in paragraph (1) is required under a court order or spousal agreement to provide an annuity to a former spouse upon becoming eligible to be a participant in the Plan or has made an election under subsection (b) to provide an annuity to a former spouse, the Secretary—

(A)

may not pay an annuity under paragraph (1) or (2); but

(B)

shall pay an annuity to that former spouse as if the person had been a participant in the Plan and had made an election under subsection (b) to provide an annuity to the former spouse, or in accordance with that election, as the case may be, if the Secretary receives a written request from the former spouse concerned that the election be deemed to have been made in the same manner as provided in section 1450(f)(3) of this title.

(4)

Computation.—

The amount of an annuity under this subsection is computed under section 1451(c) of this title.

(5)

Deemed election to provide an annuity for dependent.—

Paragraph (6) of subsection (d) shall apply in the case of a member described in paragraph (1) who dies after November 23, 2003, when no other annuity is payable on behalf of the member under this subchapter.

(g)

Election To Increase Coverage Upon Remarriage.—

(1)

Election.—

A person—

(A)

who is a participant in the Plan and is providing coverage under subsection (a) for a spouse or a spouse and child, but at less than the maximum level; and

(B)

who remarries,

may elect, within one year of such remarriage, to increase the level of coverage provided under the Plan to a level not in excess of the current retired pay of that person.

(2)

Payment required.—

Such an election shall be contingent on the person paying to the United States the amount determined under paragraph (3) plus interest on such amount at a rate determined under regulations prescribed by the Secretary of Defense.

(3)

Amount to be paid.—

The amount referred to in paragraph (2) is the amount equal to the difference between—

(A)

the amount that would have been withheld from such person’s retired pay under section 1452 of this title if the higher level of coverage had been in effect from the time the person became a participant in the Plan; and

(B)

the amount of such person’s retired pay actually withheld.

(4)

Manner of making election.—

An election under paragraph (1) shall be made in such manner as the Secretary shall prescribe and shall become effective upon receipt of the payment required by paragraph (2).

(5)

Disposition of payments.—

A payment received under this subsection by the Secretary of Defense shall be deposited into the Department of Defense Military Retirement Fund. Any other payment received under this subsection shall be deposited in the Treasury as miscellaneous receipts.

(Added Pub. L. 92–425, § 1(3), Sept. 21, 1972, 86 Stat. 707; amended Pub. L. 94–496, § 1(2), Oct. 14, 1976, 90 Stat. 2375; Pub. L. 95–397, title II, § 202, Sept. 30, 1978, 92 Stat. 844; Pub. L. 97–252, title X, § 1003(b),

cite as: 10 USC 1448