Editorial Notes
Amendments
2019—Subsec. (d)(2). Pub. L. 116–92 struck out subpar. (A) designation and heading before “In the case of a member described in paragraph (1)” and struck out subpar. (B) which read as follows: “Optional annuity when there is an eligible surviving spouse.—In the case of a member described in paragraph (1) who dies after October 7, 2001, and for whom there is a surviving spouse eligible for an annuity under paragraph (1), the Secretary may pay an annuity under this subchapter to the member’s dependent children under subsection (a)(3) or (a)(4) of section 1450 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).”
2016—Subsec. (f)(2). Pub. L. 114–328, § 642(b), amended par. (2) generally. Prior to amendment, text read as follows: “The Secretary concerned shall pay an annuity under this subchapter to the dependent child, or to a special needs trust pursuant to section 1450(a)(4) of this title, of a person described in paragraph (1) if there is no surviving spouse or if the person’s surviving spouse subsequently dies.”
Subsec. (f)(5). Pub. L. 114–328, § 642(c), added par. (5).
2015—Subsec. (b)(7). Pub. L. 114–92 added par. (7).
2014—Subsec. (b)(6). Pub. L. 113–291, § 624(a)(2)(B)(i), added par. (6).
Subsec. (d)(2)(A). Pub. L. 113–291, § 624(a)(2)(B)(ii)(I), substituted “subsection (a)(2) or (a)(4) of section 1450” for “section 1450(a)(2)”.
Subsec. (d)(2)(B). Pub. L. 113–291, § 624(a)(2)(B)(ii)(II), substituted “subsection (a)(3) or (a)(4) of section 1450” for “section 1450(a)(3)”.
Subsec. (f)(2). Pub. L. 113–291, § 624(a)(2)(B)(iii), inserted “, or to a special needs trust pursuant to section 1450(a)(4) of this title,” after “dependent child”.
2006—Subsec. (b)(1)(E). Pub. L. 109–364, § 643(a)(1), inserted “or under subparagraph (G) of this paragraph” before period at end.
Subsec. (b)(1)(G). Pub. L. 109–364, § 643(a)(2), added subpar. (G).
Subsec. (d)(2)(B). Pub. L. 109–364, § 644(a), substituted “October 7, 2001” for “November 23, 2003”.
Subsec. (d)(6)(A). Pub. L. 109–364, § 1071(a)(8), struck out second comma after “November 23, 2003”.
2004—Subsecs. (b)(1)(F), (d)(2)(B), (6)(A). Pub. L. 108–375 substituted “after November 23, 2003,” for “on or after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2004”.
2003—Subsec. (b)(1)(F). Pub. L. 108–136, § 645(b)(1), added subpar. (F).
Subsec. (d)(1). Pub. L. 108–136, § 645(a)(2), substituted “Except as provided in paragraph (2)(B), the Secretary concerned” for “The Secretary concerned” in introductory provisions.
Subsec. (d)(2). Pub. L. 108–136, § 645(a)(1), amended heading and text of par. (2) generally. Prior to amendment, text read as follows: “The Secretary concerned shall pay an annuity under this subchapter to the dependent child of a member described in paragraph (1) if there is no surviving spouse or if the member’s surviving spouse subsequently dies.”
Subsec. (d)(6). Pub. L. 108–136, § 645(c), added par. (6).
Subsec. (f). Pub. L. 108–136, § 644(b), inserted “or Before” after “Dying When” in heading.
Subsec. (f)(1). Pub. L. 108–136, § 644(a), reenacted heading without change and amended text generally. Prior to amendment, text read as follows: “The Secretary concerned shall pay an annuity under this subchapter to the surviving spouse of a person who is eligible to provide a reserve-component annuity and who dies—
“(A) 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
“(B) 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.”
2001—Subsec. (d). Pub. L. 107–107 struck out “Retirement-Eligible” before “Members” in heading and amended par. (1) generally. Prior to amendment, par. (1) read as follows:
“(1) Surviving spouse annuity.—The Secretary concerned shall pay an annuity under this subchapter to the surviving spouse of a member who dies on active duty after—
“(A) becoming eligible to receive retired pay;
“(B) qualifying for retired pay except that he has not applied for or been granted that pay; or
“(C) completing 20 years of active service but before he is eligible to retire as a commissioned officer because he has not completed 10 years of active commissioned service.”
2000—Subsec. (a)(2). Pub. L. 106–398, § 1 [[div. A], title VI, § 655(c)(1)], substituted “who elects under subparagraph (B) not to participate in the Plan” for “described in clauses (i) and (ii) of subparagraph (B) who does not elect to participate in the Plan before the end of the 90-day period referred to in that clause” in concluding provisions.
Subsec. (a)(2)(B). Pub. L. 106–398, § 1 [[div. A], title VI, § 655(a)], amended heading and text of subpar. (B) generally. Prior to amendment, text read as follows: “A person who (i) is eligible to participate in the Plan under paragraph (1)(B), (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, and (iii) elects to participate in the Plan (and makes a designation under subsection (e)) before the end of the 90-day period beginning on the date he receives such notification.”
Subsec. (a)(3)(B). Pub. L. 106–398, § 1 [[div. A], title VI, § 655(b)], substituted “who is eligible to provide” for “who elects to provide” in introductory provisions, added cls. (i) and (ii), and redesignated former cls. (i) and (ii) as (iii) and (iv), respectively.
Subsec. (a)(4)(A). Pub. L. 106–398, § 1 [[div. A], title VI, § 655(c)(2)(A)], struck out “not to participate in the Plan” after “election under paragraph (2)(A)”.
Subsec. (a)(4)(B). Pub. L. 106–398, § 1 [[div. A], title VI, § 655(c)(2)(B)], struck out “to participate in the Plan” after “under paragraph (2)(B)”.
Subsec. (b)(3)(E)(ii). Pub. L. 106–398, § 1 [[div. A], title X, § 1087(a)(10)], struck out second comma after “October 16, 1998”.
Subsec. (e). Pub. L. 106–398, § 1 [[div. A], title VI, § 655(c)(3)], substituted “a person is required to make a designation under this subsection, the person” for “a person electing to participate in the Plan is required to make a designation under this subsection, the person making such election” in introductory provisions.
1999—Subsec. (b)(3)(E)(ii). Pub. L. 106–65 substituted “after October 16, 1998,” for “on or after the date of the enactment of the subparagraph”.
1998—Subsec. (b)(3)(C). Pub. L. 105–261, § 643(a)(1), struck out “effective date,” after “Irrevocability,” in heading and “Such an election is effective as of the first day of the first calendar month following the month in which it is received by the Secretary concerned.” after “section 1450(f) of this title.” in text.
Subsec. (b)(3)(E). Pub. L. 105–261, § 643(a)(2), added subpar. (E).
1997—Pub. L. 105–85 substituted “Plan” for “plan” in section catchline.
1996—Pub. L. 104–201 amended section generally, revising and restating provisions relating to application of the Plan and inserting subsec., par., and subpar. headings.
1994—Subsec. (a)(2)(B). Pub. L. 103–337, § 1671(d)(2), substituted “12731(d)” for “1331(d)”.
Subsec. (b)(1). Pub. L. 103–337, § 638, designated existing provisions as subpar. (A) and added subpars. (B) to (E).
Subsec. (f)(1). Pub. L. 103–337, § 1671(d)(2), substituted “12731(d)” for “1331(d)” in subpars. (A) and (B).
1989—Subsec. (a)(1)(B), (2)(B). Pub. L. 101–189, § 1407(a)(2), substituted “reserve-component retired pay” for “retired pay under chapter 67 of this title”.
Subsec. (a)(4)(A). Pub. L. 101–189, § 1407(a)(3), struck out “or retainer” after “entitled to retired”.
Subsec. (f)(1)(A), (B). Pub. L. 101–189, § 1407(a)(2), substituted “reserve-component retired pay” for “retired pay under chapter 67 of this title”.
1986—Subsec. (a)(5). Pub. L. 99–661, § 1343(a)(8)(B), substituted “a reserve-component annuity” for “an annuity by virtue of eligibility under paragraph (1)(B)”.
Subsec. (b)(5). Pub. L. 99–661, § 641(b)(1), inserted “(A) whether the election is being made pursuant to the requirements of a court order, or (B)”.
Subsec. (d)(2). Pub. L. 99–661, § 642(a)(1), substituted “if there is no surviving spouse or if the member’s surviving spouse subsequently dies” for “if the member and the member’s spouse die as a result of a common accident”.
Subsec. (f)(2). Pub. L. 99–661, § 642(a)(2), substituted “if there is no surviving spouse or if the person’s surviving spouse subsequently dies” for “if the person and the person’s spouse die as a result of a common accident”.
1985—Subsec. (a)(1)(A). Pub. L. 99–145, § 719(8)(A), substituted “retired pay” for “retired or retainer pay”.
Subsec. (a)(2)(A). Pub. L. 99–145, § 721(a)(1), inserted “(with his spouse’s concurrence, if required under paragraph (3))” after “unless he elects”.
Pub. L. 99–145, § 719(8)(A), substituted “retired pay” for “retired or retainer pay”.
Subsec. (a)(3). Pub. L. 99–145, § 721(a)(2), amended par. (3) generally. Prior to amendment, par. (3) read as follows:
“(A) If a person who is eligible under paragraph (1)(A) to participate in the Plan and who is married elects not to participate in the Plan at the maximum level, or elects to provide an annuity for a dependent child but not for his spouse, or elects to provide an annuity for a former spouse under subsection (b)(2), that person’s spouse shall be notified of that election.
“(B) If a person who is eligible under paragraph (1)(B) to participate in the Plan and who is married does not elect to participate in the Plan at the maximum level, or elects to provide an annuity for a dependent child but not for his spouse, or elects to provide an annuity for a former spouse under subsection (b)(2), that person’s spouse shall be notified of that action.”
Subsec. (a)(6). Pub. L. 99–145, § 715(a), added par. (6).
Subsec. (b)(1). Pub. L. 99–145, § 719(3), substituted “a reserve-component annuity” for “an annuity under this paragraph by virtue of eligibility under subsection (a)(1)(B)”.
Subsec. (b)(2). Pub. L. 99–145, § 719(3), substituted “a reserve-component annuity” for “an annuity under this paragraph by virtue of eligibility under subsection (a)(1)(B)”.
Pub. L. 99–145, § 716(a)(1), inserted “(other than a child who is a beneficiary under an election under paragraph (4))” after “that spouse or child” in second sentence.
Subsec. (b)(3)(B). Pub. L. 99–145, § 719(8)(A), substituted “retired pay” for “retired or retainer pay”.
Subsec. (b)(4), (5). Pub. L. 99–145, § 716(a)(2), (3), added par. (4) and redesignated former par. (4) as (5).
Subsec. (c). Pub. L. 99–145, § 513(b), inserted “disability” before “retired pay”.
Subsec. (d). Pub. L. 99–145, § 712(a), amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: “If a member of an armed force dies on active duty after he has become entitled to retired or retainer pay, or after he has qualified for that pay except that he has not applied for or been granted that pay, and his spouse is eligible for dependency and indemnity compensation under section 411(a) of title 38 in an amount that is less than the annuity the spouse would have received under this subchapter if it had applied to the member when he died, the Secretary concerned shall pay to the spouse an annuity equal to the difference between that amount of compensation and 55 percent of the retired or retainer pay to which the otherwise eligible spouse described in section 1450(a)(1) of this title would have been entitled if the member had been entitled to that pay based upon his years of active service when he died.”
Subsec. (f). Pub. L. 99–145, § 713(a), added subsec. (f).
Subsec. (g). Pub. L. 99–145, § 715(b), added subsec. (g).
1983—Subsec. (a)(3). Pub. L. 98–94, § 941(c)(2), substituted “provide an annuity for a former spouse under subsection (b)(2),” for “provide an annuity under subsection (b)(2) of this section,” in subpars. (A) and (B).
Subsec. (a)(5). Pub. L. 98–94, § 941(a)(1), inserted “except in accordance with subsection (b)(3)”.
Subsec. (b). Pub. L. 98–94, § 941(a)(2), amended subsec. (b) generally. Prior to amendment subsec. (b) read as follows:
“(1) A person who is not married and does not have a dependent child when he becomes eligible to participate in the Plan may elect to provide an annuity to a natural person with an insurable interest in that person or to provide an annuity to a former spouse.
“(2) A person who is married, or has a dependent child may elect to provide an annuity to a former spouse instead of providing an annuity to a spouse or dependent child if the election is made in order to carry out the terms of a written agreement entered into voluntarily with the former spouse (without regard to whether such agreement is included in or approved by a court order).
“(3) In the case of a person electing to provide an annuity under paragraph (1) or (2) of this subsection by virtue of eligibility under subsection (a)(1)(B), the election shall include a designation under subsection (e).
“(4) Any person who elects under paragraph (1) or (2) to provide an annuity to a former spouse shall, at the time of making such election, provide the Secretary concerned with a written statement, in a form to be prescribed by that Secretary, signed by such person and the former spouse setting forth whether the election is being made pursuant to a voluntary written agreement previously entered into by such person as a part of or incident to a proceeding of divorce, dissolution, annulment, or legal separation, and if so, whether such voluntary written agreement has been incorporated in or ratified or approved by a court order.”
1982—Pub. L. 97–295, § 1(18), substituted “Plan” for “plan” in section catchline.
Subsec. (a)(3). Pub. L. 97–252, § 1003(b)(1), inserted in subpars. (A) and (B) identical text “or elects to provide an annuity under subsection (b)(2) of this section,” after “for his spouse,”.
Subsec. (b). Pub. L. 97–252, § 1003(b)(2), designated existing first sentence as par. (1), authorized an election to provide an annuity to a former spouse, added pars. (2) and (4), designated existing second sentence as par. (3), and substituted “person electing to provide an annuity under paragraph (1) or (2) of this subsection” for “person providing an annuity under this subsection” and “the election” for “such an election”.
1978—Subsec. (a). Pub. L. 95–397, § 202(a), amended subsec. (a) generally, primarily inserting provision that this subchapter shall be known as the Survivor Benefit Plan and provisions of pars. (1)(B), (2)(B) and concluding sentence, (3)(B), (4)(B), and last sentence of (5).
Subsec. (b). Pub. L. 95–397, § 202(b), substituted “entitled to retired or retainer pay” for “eligible to participate in the Plan” and inserted provisions relating to the inclusion in an election a designation under subsection (e) by persons providing an annuity under this subsection by virtue of eligibility under subsection (a)(1)(B).
Subsec. (e). Pub. L. 95–397, § 202(c), added subsec. (e).
1976—Subsec. (a). Pub. L. 94–496 inserted “or elects to provide an annuity for a dependent child but not for his spouse” after “maximum level”.
Statutory Notes and Related Subsidiaries
Effective Date of 2019 Amendment
Pub. L. 116–92, div. A, title VI, § 622(f), Dec. 20, 2019, 133 Stat. 1428, provided that:
“This section [amending this section and sections
1450 and
1451 of this title and enacting provisions set out as notes under this section and
section 1450 of this title] and the amendments made by this section shall take effect on the first day of the first month that begins after the date of the enactment of this Act [
Dec. 20, 2019], except subsections (d) and (e) of this section [amending this section and enacting provisions set out as a note below] and the amendments made thereby shall take effect on
January 1, 2023.”
Effective Date of 2016 Amendment
Pub. L. 114–328, div. A, title VI, § 642(e), Dec. 23, 2016, 130 Stat. 2165, provided that:
“(1) Payment.—
No annuity benefit under subchapter II of
chapter 73 of title 10, United States Code, shall accrue to any person by reason of the amendments made by this section [amending this section and sections 1450 and 1451 of this title] for any period before the date of the enactment of this Act [
Dec. 23, 2016].
“(2) Elections.—
For any death that occurred before the date of the enactment of this Act with respect to which an annuity under such subchapter is being paid (or could be paid) to a
surviving spouse, the Secretary concerned may, within six months of that date and in consultation with the
surviving spouse, determine it appropriate to provide an annuity for the dependent children of the decedent under paragraph 1448(f)(2)(B) of title 10, United States Code, as added by subsection (b), instead of an annuity for the
surviving spouse. Any such determination and resulting change in beneficiary shall be effective as of the first day of the first month following the date of the determination.”
Effective Date of 2015 Amendment
Pub. L. 114–92, div. A, title VI, § 641(b), Nov. 25, 2015, 129 Stat. 853, provided that:
“Paragraph (7) of
section 1448(b) of title 10, United States Code, as added by subsection (a), shall apply with respect to any person whose
former spouse beneficiary dies on or after the date of the enactment of this Act [
Nov. 25, 2015].”
Effective Date of 2006 Amendment
Pub. L. 109–364, div. A, title VI, § 644(b), Oct. 17, 2006, 120 Stat. 2261, provided that:
“Any annuity payable to a dependent child under subchapter II of
chapter 73 of title 10, United States Code, by reason of the amendment made by subsection (a) [amending this section] shall be payable only for months beginning on or after the date of the enactment of this Act [
Oct. 17, 2006].”
Effective Date of 2003 Amendment
Pub. L. 108–136, div. A, title VI, § 644(c), Nov. 24, 2003, 117 Stat. 1518, provided that:
“Subparagraph (B) of
section 1448(f)(1) of title 10, United States Code, as added by subsection (a), shall take effect as of
September 10, 2001, and shall apply with respect to performance of inactive-duty training (as defined in
section 101(d) of title 10, United States Code) on or after that date.”
Effective Date of 2000 Amendment
Pub. L. 106–398, § 1 [[div. A], title VI, § 655(d)], Oct. 30, 2000, 114 Stat. 1654, 1654A–166, provided that:
“The amendments made by this section [amending this section and
section 1450 of this title] apply only with respect to a notification under
section 12731(d) of title 10, United States Code, made after
January 1, 2001, that a member of a reserve component has completed the years of service required for eligibility for
reserve-component retired pay.”
Effective Date of 1997 Amendment
Pub. L. 105–85, div. A, title VI, § 645(c), Nov. 18, 1997, 111 Stat. 1801, provided that:
“The amendments made by this section [amending
section 4(e)(1) of Pub. L. 92–425 and
section 653(d) of Pub. L. 100–456, set out as notes below] take effect on the first day of the first month beginning after the date of the enactment of this Act [
Nov. 18, 1997] and shall apply with respect to payments of benefits for months beginning on or after that date, except that the Secretary of
Veterans Affairs may provide, if necessary for administrative implementation, that such amendments shall apply beginning with a later month, not later than the first month beginning more than 180 days after the date of the enactment of this Act.”
Effective Date of 1986 Amendment
Amendment by section 641 of Pub. L. 99–661 applicable to court orders issued on or after Nov. 14, 1986, see section 641(c) of Pub. L. 99–661, set out as a note under section 1450 of this title.
Pub. L. 99–661, div. A, title VI, § 642(c), Nov. 14, 1986, 100 Stat. 3886, provided that:
“The amendments made by subsection (a) [amending this section] shall apply only to claims arising on or after
March 1, 1986. The amendments made by subsection (b) [amending
section 1451 of this title] shall apply to payments for periods after
February 28, 1986.”
Effective Date of 1983 Amendment
Pub. L. 98–94, title IX, § 941(b), Sept. 24, 1983, 97 Stat. 653, provided that:
“In the case of a person who on the date of the enactment of this Act [
Sept. 24, 1983] is a person described in subparagraph (A) of subsection (b)(3) of
section 1448 of title 10, United States Code (as amended by subsection (a)(2)), such subsection shall apply to that person as if the one-year period provided for in subparagraph (A) of such subsection began on the date of the enactment of this Act.”
Effective Date of 1982 Amendment; Transition Provisions
Amendment by Pub. L. 97–252 effective Feb. 1, 1983, and applicable to persons becoming eligible to participate in Survivor Benefit Plan provided for in this subchapter before, on, or after Feb. 1, 1983, see section 1006 of Pub. L. 97–252, set out as an Effective Date; Transition Provisions note under section 1408 of this title.
Survivor Benefit Plan Open Season
Pub. L. 117–263, div. A, title VI, § 643, Dec. 23, 2022, 136 Stat. 2634, provided that:
“(a) Elections by Persons Not Currently Participating in Survivor Benefit Plan.—
“(1) Election of SBP coverage.—
An eligible retired or former member may elect to participate in the Survivor Benefit
Plan during the open season described in subsection (e).
“(2) Eligible retired or former members.—For purposes of paragraph (1), an eligible retired or former member is a member or former member of the uniformed services who, on or before the day before the first day of the open season described in subsection (e)—
“(B)
would be entitled to
retired pay under
chapter 1223 of title 10, United States Code (or chapter 67 of such title as in effect before
October 5, 1994), but for the fact that such member or former member is under 60 years of age.
“(3) Status under SBP of persons making elections.—
“(A) Standard annuity.—
A person making an election under paragraph (1) by reason of eligibility under paragraph (2)(A) shall be treated for all purposes as providing a
standard annuity under the Survivor Benefit
Plan.
“(B) Reserve-component annuity.—
A person making an election under paragraph (1) by reason of eligibility under paragraph (2)(B) shall be treated for all purposes as providing a
reserve-component annuity under the Survivor Benefit
Plan.
“(4) Premiums for open season.—
“(A) Premiums to be charged.—
The
Secretary of Defense shall prescribe in regulations premiums that a person who makes an election under paragraph (1) shall be required to pay for participating in the Survivor Benefit
Plan pursuant to the election.
“(B) Amount of premiums.—The total amount of the premiums to be paid by a person under the regulations prescribed under subparagraph (A) shall be equal to the sum of—
“(i)
the total amount by which the
retired pay of the person would have been reduced before the effective date of the election under subsection (d) if the person had elected to participate in the Survivor Benefit
Plan (for the same
base amount specified in the election) at the first opportunity that was afforded the person to participate under
chapter 73 of title 10, United States Code;
“(ii)
interest on the amount by which the
retired pay of the person would have been so reduced, computed from the date on which the
retired pay would have been so reduced at such rate or rates and according to such methodology as the Secretary determines reasonable; and
“(iii)
any additional amount that the Secretary determines necessary to protect the actuarial soundness of the Department of Defense Military Retirement Fund against any increased risk for the fund that is associated with the election.
“(C) Premiums to be credited to retirement fund.—
Premiums paid under the regulations prescribed under subparagraph (A) shall be credited to the Department of Defense Military Retirement Fund.
“(b) Elections by Persons Currently Participating in Survivor Benefit Plan.—
“(1) Election of to discontinue SBP participation.—
A person participating in the Survivor Benefit
Plan on the day before the first day of the open season described in subsection (e) may elect to discontinue such participation during the open season.
“(2) Consent of beneficiaries.—
“(A) In general.—Except as provided in subparagraph (B), a person described in paragraph (1) may not make an election under that paragraph without the concurrence of—
“(i)
each designated beneficiary of such person under the Survivor Benefit
Plan; and
“(ii)
the spouse of such person, if such person is married.
“(B) Exception when beneficiary unavailable.—A person may make an election under paragraph (1) without a concurrence required under subparagraph (2) if the person establishes to the satisfaction of the Secretary concerned—
“(i)
that the whereabouts of the spouse or beneficiary, as the case may be, cannot be determined; or
“(ii)
that, due to exceptional circumstances, requiring the person to seek the consent of the spouse or beneficiary, as the case may be, would otherwise be inappropriate.
“(3) Treatment of premiums.—
“(A) Discontinuation of reductions in pay.—
As of the effective date under subsection (d) of an election by a person under paragraph (1), the Secretary concerned shall discontinue the reduction being made in the
retired pay of the person arising from participation in the Survivor Benefit
Plan or, in the case of a person who has been required to make deposits in the Treasury on account of participation in the Survivor Benefit
Plan, that person may discontinue making such deposits effective on such effective date.
“(B) Treatment of previous reductions.—
A person who makes an election under paragraph (1) is not entitled to a refund of any reduction or deposit described in subparagraph (A) made before such effective date.
“(c) Manner of Making Elections.—
“(1) In general.—
An election under subsection (a) or (b) shall be made in writing, signed by the person making the election, and received by the Secretary concerned before the end of the open season described in subsection (e).
“(2) Conditions.—
Except as provided in paragraph (3), an election under subsection (a) shall be made subject to the same conditions, and with the same opportunities for designation of beneficiaries and specification of
base amount, that apply under the Survivor Benefit
Plan.
“(3) Election must be voluntary.—
An election under subsection (a) or (b) is not effective unless the person making the election declares the election to be voluntary. An election under subsection (a) or (b) to participate or not to participate in the Survivor Benefit
Plan may not be required by any
court. An election by a person under subsection (a) to participate in the Survivor Benefit
Plan is not subject to the concurrence of a spouse or
former spouse of the person.
“(d) Effective Date for Elections.—
An election under subsection (a) or (b) shall be effective on the first day of the first calendar month following the month in which the election is received by the Secretary concerned.
“(e) Open Season Described.—
The open season described in this subsection is the period beginning on the date of the enactment of this Act [Dec. 23, 2022] and ending on January 1, 2024.
“(f) Applicability of Certain Provisions of Law.—
The provisions of sections
1449,
1453, and
1454 of title
10, United States Code, are applicable to a person making an election, and to an election, under subsection (a) or (b) in the same manner as if the election were made under the Survivor Benefit
Plan.
“(g) Definitions.—In this section:
“(2)
The term ‘
Department of Defense Military Retirement Fund’ means the fund established under
section 1461(a) of title 10, United States Code.
“(4)
The terms ‘Secretary concerned’ and ‘uniformed services’ have the meanings given those terms in
section 101 of title 37, United States Code.
“(5)
The term ‘Survivor Benefit
Plan’ means the program established under subchapter II of
chapter 73 of title 10, United States Code.”
Restoration of Eligibility for Previously Eligible Spouses
Pub. L. 116–92, div. A, title VI, § 622(e), Dec. 20, 2019, 133 Stat. 1428, provided that:
“The Secretary of the military department concerned shall restore annuity eligibility to any eligible
surviving spouse who, in consultation with the Secretary, previously elected to transfer payment of such annuity to a surviving child or children under the provisions of
section 1448(d)(2)(B) of title 10, United States Code, as in effect on the day before the effective date provided under subsection (f) [set out as an Effective Date of 2019 Amendment note above]. Such eligibility shall be restored whether or not payment to such child or children subsequently was terminated due to loss of dependent status or death. For the purposes of this subsection, an eligible spouse includes a spouse who was previously eligible for payment of such annuity and is not remarried, or remarried after having attained age 55, or whose second or subsequent marriage has been terminated by death, divorce or annulment.”
Applicability to Former Spouse Deaths Before Enactment of Pub. L. 114–92
Pub. L. 114–92, div. A, title VI, § 641(c), Nov. 25, 2015, 129 Stat. 853, provided that:
“(1) In general.—A person—
“(A)
who before the date of the enactment of this Act [
Nov. 25, 2015] had a
former spouse beneficiary under the Survivor Benefit
Plan who died before that date; and
“(B)
who on the date of the enactment of this Act is married,
may elect to provide spouse coverage for such spouse under the
Plan, regardless of whether the person married such spouse before or after the death of the
former spouse beneficiary. Any such election may only be made during the one-year period beginning on the date of the enactment of this Act.
“(2) Effective date of election if married at least a year at death former spouse.—
If the person providing the annuity was married to the spouse beneficiary for at least one year at the time of the death of the
former spouse beneficiary, the effective date of such election shall be the first day of the first month after the death of the
former spouse beneficiary.
“(3) Other effective date.—
If the person providing the annuity married the spouse beneficiary after (or during the one-year period preceding) the death of the
former spouse beneficiary, the effective date of the election shall be the first day of the first month following the first anniversary of the person’s marriage to the spouse beneficiary.
“(4) Responsibility for premiums.—
A person electing to participate in the
Plan under this subsection shall be responsible for payment of all premiums due from the effective date of the election.”
Transition
Pub. L. 109–364, div. A, title VI, § 643(c), Oct. 17, 2006, 120 Stat. 2261, provided that:
“(1) Transition period.—
In the case of a participant in the Survivor Benefit
Plan who made a covered insurable-interest election (as defined in paragraph (2)) and whose designated beneficiary under that election dies before the date of the enactment of this Act [
Oct. 17, 2006] or during the 18-month period beginning on such date, the time period applicable for purposes of the limitation in the third sentence of subparagraph (G)(i) of
section 1448(b)(1) of title 10, United States Code, as added by subsection (a), shall be the two-year period beginning on the date of the enactment of this Act (rather than the 180-day period specified in that sentence).
“(2) Covered insurable-interest elections.—
For purposes of paragraph (1), a covered insurable-interest election is an election under
section 1448(b)(1) of title 10, United States Code, made before the date of the enactment of this Act [
Oct. 17, 2006], or during the 18-month period beginning on such date, by a participant in the Survivor Benefit
Plan to provide an annuity under that
plan to a natural person with an insurable interest in that person.
“(3) Survivor benefit plan.—
For purposes of this subsection, the term ‘Survivor Benefit
Plan’ means the program under subchapter II of
chapter 73 of title 10, United States Code.”
One-Year Open Enrollment Period for Survivor Benefit Plan Commencing October 1, 2005
Pub. L. 108–375, div. A, title VI, § 645, Oct. 28, 2004, 118 Stat. 1962, as amended by Pub. L. 109–364, div. A, title X, § 1071(g)(5), Oct. 17, 2006, 120 Stat. 2402, provided that:
“(a) Persons Not Currently Participating in Survivor Benefit Plan.—
“(1) Election of sbp coverage.—
An eligible retired or former member may elect to participate in the Survivor Benefit
Plan during the open enrollment period specified in subsection (f).
“(2) Election of supplemental annuity coverage.—
An eligible retired or former member who elects under paragraph (1) to participate in the Survivor Benefit
Plan at the maximum level may also elect during the open enrollment period to participate in the Supplemental Survivor Benefit
Plan.
“(3) Eligible retired or former member.—For purposes of paragraphs (1) and (2), an eligible retired or former member is a member or former member of the uniformed services who on the day before the first day of the open enrollment period is not a participant in the Survivor Benefit Plan and—
“(B)
would be entitled to
retired pay under
chapter 1223 of title 10, United States Code, but for the fact that such member or former member is under 60 years of age.
“(4) Status under sbp of persons making elections.—
“(A) Standard annuity.—
A person making an election under paragraph (1) by reason of eligibility under paragraph (3)(A) shall be treated for all purposes as providing a
standard annuity under the Survivor Benefit
Plan.
“(B) Reserve-component annuity.—
A person making an election under paragraph (1) by reason of eligibility under paragraph (3)(B) shall be treated for all purposes as providing a
reserve-component annuity under the Survivor Benefit
Plan.
“(b) Election To Increase Coverage Under SBP.—A person who on the day before the first day of the open enrollment period is a participant in the Survivor Benefit Plan but is not participating at the maximum base amount or is providing coverage under the Plan for a dependent child and not for the person’s spouse or former spouse may, during the open enrollment period, elect to—
“(c) Election for Current SBP Participants To Participate in Supplemental SBP.—
“(1) Election.—
A person who is eligible to make an election under this paragraph may elect during the open enrollment period to participate in the Supplemental Survivor Benefit
Plan.
“(2) Persons eligible.—
Except as provided in paragraph (3), a person is eligible to make an election under paragraph (1) if on the day before the first day of the open enrollment period the person is a participant in the Survivor Benefit
Plan at the maximum level, or during the open enrollment period the person increases the level of such participation to the maximum level under subsection (b) of this section, and under that
Plan is providing annuity coverage for the person’s spouse or a
former spouse.
“(3) Limitation on eligibility for certain sbp participants not affected by two-tier annuity computation.—
A person is not eligible to make an election under paragraph (1) if (as determined by the Secretary concerned) the annuity of a spouse or
former spouse beneficiary of that person under the Survivor Benefit
Plan is to be computed under
section 1451(e) of title 10, United States Code. However, such a person may during the open enrollment period waive the right to have that annuity computed under such section 1451(e). Any such election is irrevocable. A person making such a waiver may make an election under paragraph (1) as in the case of any other participant in the Survivor Benefit
Plan.
“(d) Manner of Making Elections.—
An election under this section shall be made in writing, signed by the person making the election, and received by the Secretary concerned before the end of the open enrollment period. Any such election shall be made subject to the same conditions, and with the same opportunities for designation of beneficiaries and specification of
base amount, that apply under the Survivor Benefit
Plan or the Supplemental Survivor Benefit
Plan, as the case may be. A person making an election under subsection (a) to provide a
reserve-component annuity shall make a designation described in
section 1448(e) of title 10, United States Code.
“(e) Effective Date for Elections.—
Any such election shall be effective as of the first day of the first calendar month following the month in which the election is received by the Secretary concerned.
“(f) Open Enrollment Period.—
The open enrollment period under this section is the one-year period beginning on October 1, 2005.
“(g) Effect of Death of Person Making Election Within Two Years of Making Election.—
If a person making an election under this section dies before the end of the two-year period beginning on the effective date of the election, the election is void and the amount of any reduction in
retired pay of the person 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 voided election if the deceased person had died after the end of such two-year period.
“(h) Applicability of Certain Provisions of Law.—
The provisions of sections
1449,
1453, and
1454 of title
10, United States Code, are applicable to a person making an election, and to an election, under this section in the same manner as if the election were made under the Survivor Benefit
Plan or the Supplemental Survivor Benefit
Plan, as the case may be.
“(i) Premium for Open Enrollment Election.—
“(1) Premiums to be charged.—The Secretary of Defense shall prescribe in regulations premiums which a person electing under this section shall be required to pay for participating in the Survivor Benefit Plan pursuant to the election. The total amount of the premiums to be paid by a person under the regulations shall be equal to the sum of—
“(A)
the total amount by which the
retired pay of the person would have been reduced before the effective date of the election if the person had elected to participate in the Survivor Benefit
Plan (for the same
base amount specified in the election) at the first opportunity that was afforded the member to participate under
chapter 73 of title 10, United States Code;
“(B)
interest on the amounts by which the
retired pay of the person would have been so reduced, computed from the dates on which the
retired pay would have been so reduced at such rate or rates and according to such methodology as the
Secretary of Defense determines reasonable; and
“(C)
any additional amount that the Secretary determines necessary to protect the actuarial soundness of the Department of Defense Military Retirement Fund against any increased risk for the fund that is associated with the election.
“(2) Premiums to be credited to retirement fund.—
Premiums paid under the regulations under paragraph (1) shall be credited to the Department of Defense Military Retirement Fund.
“(j) Definitions.—In this section:
“(1)
The term ‘Survivor Benefit
Plan’ means the program established under subchapter II of
chapter 73 of title 10, United States Code.
“(2)
The term ‘Supplemental Survivor Benefit
Plan’ means the program established under subchapter III of
chapter 73 of title 10, United States Code.
“(3)
The term ‘
retired pay’ includes retainer pay paid under section 6330 [now 8330] of title 10, United States Code.
“(4)
The terms ‘uniformed services’ and ‘Secretary concerned’ have the meanings given those terms in
section 101 of title 37, United States Code.
“(5)
The term ‘
Department of Defense Military Retirement Fund’ means the
Department of Defense Military Retirement Fund established under
section 1461(a) of title 10, United States Code.”
Open Enrollment Period for Survivor Benefit Plan Commencing March 1, 1999
Pub. L. 105–261, div. A, title VI, § 642, Oct. 17, 1998, 112 Stat. 2045, as amended by Pub. L. 106–65, div. A, title VI, § 654, Oct. 5, 1999, 113 Stat. 667, provided for a one-year open enrollment period beginning on Mar. 1, 1999, during which an eligible retired or former member who was not participating in the Survivor Benefit Plan could elect to participate in the Plan and also elect to participate in the Supplemental Survivor Benefit Plan.
Annuities for Certain Military Surviving Spouses
Pub. L. 105–85, div. A, title VI, § 644, Nov. 18, 1997, 111 Stat. 1800, as amended by Pub. L. 106–65, div. A, title VI, § 656(a), (b), title X, § 1066(c)(3), Oct. 5, 1999, 113 Stat. 668, 773; Pub. L. 107–314, div. A, title VI, § 634, Dec. 2, 202, 116 Stat. 2573, provided that:
“(a) Survivor Annuity.—
(1) The Secretary concerned shall pay an annuity to the qualified surviving spouse of each member of the uniformed services who—
“(A)
became entitled to retired or retainer pay before September 21, 1972, died before March 21, 1974, and was entitled to retired or retainer pay on the date of death; or
“(B)
died before
October 1, 1978, and at the time of his death would have been entitled to
retired pay under
chapter 67 [now 1223] of title 10, United States Code (as in effect before
December 1, 1994), but for the fact that he was under 60 years of age.
“(b) Amount of Annuity.—
(1)
An annuity under this section shall be paid at the rate of $185.58 per month, as adjusted from time to time under paragraph (3).
“(2) The amount of an annuity to which a surviving spouse is entitled under this section for any period shall be reduced (but not below zero) by any amount paid to that surviving spouse for the same period under any of the following provisions of law:
“(A)
Section 1311(a) of title 38, United States Code (relating to dependency and indemnity compensation payable by the Secretary of
Veterans Affairs).
“(3)
Whenever after
May 1, 2002, retired or retainer pay is increased under
section 1401a(b)(2) of title 10, United States Code, each annuity that is payable under this section shall be increased at the same time and by the same total percent.
“(c) Application Required.—
No benefit shall be paid to any person under this section unless an application for such benefit is filed with the Secretary concerned by or on behalf of such person.
“(d) Definitions.—For purposes of this section:
“(1)
The terms ‘uniformed services’ and ‘Secretary concerned’ have the meanings given such terms in
section 101 of title 37, United States Code.
“(e) Prospective Applicability.—
(1)
Annuities under this section shall be paid for months beginning after November 1997.
“(2)
No benefit shall accrue to any person by reason of the enactment of this section for any period before December 1997.”
[Pub. L. 106–65, div. A, title VI, § 656(c), Oct. 5, 1999, 113 Stat. 668, provided that:
“The amendment made by subsection (a) [amending
section 644 of Pub. L. 105–85, set out above] shall apply with respect to annuities payable for months beginning after
September 30, 1999.”
]
Authority for Relief From Previous Overpayments Under Minimum Income Widows Program
Pub. L. 104–106, div. A, title VI, § 635, Feb. 10, 1996, 110 Stat. 366, authorized the Secretary of Defense to waive recovery by the United States of any overpayment by the United States that had been made before Feb. 10, 1996, under section 4 of Public Law 92–425, set out below, and that was attributable to failure by the Department of Defense to apply the eligibility provisions of subsection (a) of such section in the case of the person to whom the overpayment had been made.
Open Enrollment Period for Survivor Benefit Plan Commencing April 1, 1992
Pub. L. 101–189, div. A, title XIV, § 1405, Nov. 29, 1989, 103 Stat. 1586, as amended by Pub. L. 101–510, div. A, title VI, § 631(2), title XIV, § 1484(l)(4)(B), Nov. 5, 1990, 104 Stat. 1580, 1720; Pub. L. 102–190, div. A, title VI, § 653(a)(1), (c)(2), Dec. 5, 1991, 105 Stat. 1388, 1389; Pub. L. 102–484, div. A, title VI, § 643, Oct. 23, 1992, 106 Stat. 2425, provided for a one-year open enrollment period beginning on Apr. 1, 1992, during which: (1) an eligible retired or former member who was not participating in the Survivor Benefit Plan could elect to participate in the Plan and also elect to participate in the Supplemental Survivor Benefit Plan, (2) a current participant in the Survivor Benefit Plan who was not participating at the maximum base amount could elect to participate in the Plan at a higher base amount or provide coverage for a previously uncovered spouse or former spouse, and (3) a participant in the Survivor Benefit Plan at the maximum level who was providing annuity coverage for a spouse or former spouse could elect to participate in the Supplemental Survivor Benefit Plan, and directed the Secretary of Defense to submit to committees of Congress a report on the open season not later than June 1, 1990.
Definitions for 1989 Amendments
Pub. L. 101–189, div. A, title XIV, § 1406, Nov. 29, 1989, 103 Stat. 1588, as amended by Pub. L. 102–190, div. A, title VI, § 653(a)(2), Dec. 5, 1991, 105 Stat. 1388, provided that:
“For the purpose of this title [see Short Title of 1989 Amendment note set out under section 1447 of this title]:
“(1)
The term ‘Survivor Benefit
Plan’ means the program established under subchapter II of
chapter 73 of title 10, United States Code.
“(2)
The term ‘
retired pay’ includes retainer pay paid under section 6330 [now 8330] of title 10, United States Code.
“(3)
The terms ‘uniformed services’ and ‘Secretary concerned’ have the meanings given those terms in
section 101 of title 37, United States Code.
“(4)
The term ‘SBP premium’ means the reduction in
retired pay required as a condition of providing an annuity under the Survivor Benefit
Plan.
Annuity for Surviving Spouses of Members Who Died Before November 1, 1953, and Who Were Entitled to Retired or Retainer Pay on Date of Death
Pub. L. 100–456, div. A, title VI, § 653, Sept. 29, 1988, 102 Stat. 1991, as amended by Pub. L. 103–337, div. A, title X, § 1070(d)(3), Oct. 5, 1994, 108 Stat. 2858; Pub. L. 105–85, div. A, title VI, § 645(a), Nov. 18, 1997, 111 Stat. 1801, provided that:
“(a) Annuity.—
(1) The Secretary concerned shall pay an annuity to the qualified surviving spouse of each member of the uniformed services who—
“(A)
died before November 1, 1953; and
“(B)
was entitled to retired or retainer pay on the date of death.
“(b) Amount of Annuity.—
(1)
An annuity payable under this section shall be paid at the rate of $165 per month, as adjusted from time to time under subsection (c).
“(c) Cost-of-Living Increases.—
Whenever retired or retainer pay is increased under
section 1401a(b)(2) of title 10, United States Code, each annuity that is payable under this section shall be increased at the same time and by the same total percent. The amount of the increase shall be based on the monthly annuity payable before any reduction under this section.
“(d) Relationship to Other Programs.—
(1)
An annuity paid to a
surviving spouse under this section is in addition to any pension to which the
surviving spouse is entitled under subchapter III of
chapter 15 of title 38, United States Code, or section 306 of the Veterans’ and Survivors’ Pension Improvement Act of 1978 (
38 U.S.C. 1521 note), and any payment made under the provisions of
section 4 of Public Law 92–425. An annuity paid under this section shall not be considered as income for the purposes of eligibility for any such pension.
“(2)
Payment of annuities under this section shall be made by the Secretary of
Veterans Affairs. In making such payments, the Secretary shall combine the payment under this section with the payment of any amount due the same person under
section 4 of Public Law 92–425 (
10 U.S.C. 1448 note), as provided in subsection (e)(1) of that section. The Secretary concerned shall transfer amounts for payments under this section to the Secretary of
Veterans Affairs in the same manner as is provided under subsection (e)(2) of
section 4 of Public Law 92–425 for payments under that section.
“(e) Definitions.—For purposes of this section:
“(1)
The terms ‘uniformed services’ and ‘Secretary concerned’ have the meanings given those terms in
section 101 of title 37, United States Code.
“(f) Effective Date.—
Annuities under this section shall be paid for months beginning after the month in which this Act is enacted [September 1988]. No benefit shall accrue to any person by reason of the enactment of this section for any period before the first month referred to in the preceding sentence. No benefit shall be paid to any person under this section unless an application for such benefit has been filed with the Secretary concerned by or on behalf of such person.”
Authority for Certain Remarried Survivor Benefit Plan Participants To Withdraw From Plan
Pub. L. 100–180, div. A, title VI, § 631, Dec. 4, 1987, 101 Stat. 1104, provided that:
“(a) Authority To Withdraw.—
(1)
An individual who is a participant in the Survivor Benefit
Plan under subchapter II of
chapter 73 of title 10, United States Code, and is described in paragraph (2) may, with the consent of such individual’s spouse, withdraw from participation in the
Plan.
“(2) An individual referred to in paragraph (1) is an individual who—
“(A)
is providing coverage for a spouse or for a spouse and child under the
Plan; and
“(B)
remarried before
March 1, 1986, and at a time when such individual was a participant in the
Plan but did not have an eligible spouse beneficiary under the
Plan.
“(b) Applicable Provisions.—
An election under subsection (a) shall be subject to subparagraphs (B) and (D) [see (E)] of
section 1448(a)(6) of title 10, United States Code, except that in applying such subparagraph (B) to subsection (a), the one-year period referred to in clause (ii) of such subparagraph shall extend until the end of the one-year period beginning 90 days after the date of the enactment of this Act [
Dec. 4, 1987].
“(c) Treatment of Prior Contributions.—
No refund of amounts by which the
retired pay of a participant in the Survivor Benefit
Plan has been reduced by reason of
section 1452 of title 10, United States Code, may be made to an individual who withdraws from the Survivor Benefit
Plan under subsection (a).”
Option for Certain Participants To Withdraw From Survivor Benefit Plan
Pub. L. 99–145, title VII, § 711(c), Nov. 8, 1985, 99 Stat. 670, provided that person who during period Oct. 19, 1984, to Nov. 8, 1985, became participant in Survivor Benefit Plan under this subchapter could withdraw from Plan before end of one-year period beginning on Nov. 8, 1985, and receive refund of contributions plus interest.
Persons Covered Under Subsections (d) and (f)
Pub. L. 99–145, title VII, § 712(b), Nov. 8, 1985, 99 Stat. 671, provided that:
“(2)
In the case of the
surviving spouse and children of a person who dies during the period beginning on
September 21, 1972, and ending on
October 1, 1985, the Secretary concerned shall take appropriate steps to locate persons eligible for an annuity under
section 1448(d) of title 10, United States Code, as amended by subsection (a). Any such person must submit an application to the Secretary for such an annuity before
October 1, 1988, to be eligible to receive such annuity. Any such annuity shall be effective only for months after the month in which the Secretary receives such application.”
Pub. L. 99–145, title VII, § 713(c), Nov. 8, 1985, 99 Stat. 672, provided that:
“(2)
In the case of the
surviving spouse and dependents of a person who dies during the period beginning on
September 30, 1978, and ending on
October 1, 1985, the Secretary concerned shall take appropriate steps to locate persons eligible for an annuity under
section 1448(f) of title 10, United States Code, as added by subsection (a). Any such person must submit an application to the Secretary for such an annuity before
October 1, 1988, to be eligible to receive such annuity. Any such annuity shall be effective only for months after the month in which the Secretary receives such application.”
Revision for Former Spouse Coverage Already in Effect
Pub. L. 99–145, title VII, § 716(b), Nov. 8, 1985, 99 Stat. 674, as amended by Pub. L. 99–661, div. A, title VI, § 645, Nov. 14, 1986, 100 Stat. 3887, provided that person who before Mar. 1, 1986, made election under subsec. (b) of this section to provide annuity for former spouse could change that election to provide annuity for former spouse and dependent children, even though former spouse had died, but such election had to be made not later than Mar. 1, 1987, in case of person who made election before Nov. 8, 1985, and not later than end of one-year period beginning on Nov. 14, 1986, in case of person who made election during period of Nov. 8, 1985, to Feb. 28, 1986.
One-Year Open Period To Switch Computation of SBP Annuity
Pub. L. 99–145, title VII, § 723(c), Nov. 8, 1985, 99 Stat. 677, provided that person who, before effective date of title VII of Pub. L. 99–145 (see Effective Date of 1985 Amendment note set out under section 1447 of this title) participated in Survivor Benefit Plan under this subchapter, and had elected to provide annuity to former spouse could, with concurrence of such former spouse, elect to terminate such annuity and provide annuity to such former spouse under section 1450(a)(1) of this title, and any such election was to be made before end of 12-month period beginning on Nov. 8, 1985.
Open Enrollment Period for Survivor Benefit Plan
Pub. L. 97–35, title II, § 212, Aug. 13, 1981, 95 Stat. 383, as amended by Pub. L. 97–252, title XI, § 1119, Sept. 8, 1982, 96 Stat. 753, provided that certain members or former members of the uniformed services who, on Aug. 13, 1981, were not participants in the Survivor Benefit Plan established under this subchapter or were not participants in the Plan at the maximum level, could elect to participate in the Plan or to participate in the Plan at a higher level, during an open enrollment period beginning Oct. 1, 1981, and ending Sept. 30, 1982, for members and former members entitled to retired or retainer pay on Aug. 13, 1981, or beginning on Oct. 1, 1982, and ending on Sept. 30, 1983, for members or former members who on Aug. 13, 1981, would have been entitled to retired pay, but for the fact they were under 60 years of age on that date.
Surviving Spouse; Annuity Payment and Reduction Provisions; Election of Annuity; Definitions; Effective Date
Pub. L. 96–402, § 5, Oct. 9, 1980, 94 Stat. 1707, provided that:
“(a)
(1) The Secretary concerned shall pay an annuity to any individual who is the surviving spouse of a member of the uniformed services who—
“(A)
died before September 21, 1972;
“(B)
was serving on active duty in the uniformed services at the time of his death and had served on active duty for a period of not less than 20 years; and
“(C)
was at the time of his death entitled to retired or retainer pay or would have been entitled to that pay except that he had not applied for or been granted that pay.
“(2)
An annuity under paragraph (1) shall be paid under the provisions of subchapter II of
chapter 73 of title 10, United States Code, in the same manner as if such member had died on or after
September 21, 1972.
“(b)
(1)
The amount of retired or retainer pay to be used as the basis for the computation of an annuity under subsection (a) is the amount of the retired or retainer pay to which the member would have been entitled if the member had been entitled to that pay based upon his years of active service when he died, adjusted by the overall percentage increase in retired and retainer pay under
section 1401a of title 10, United States Code (or any prior comparable provision of law), during the period beginning on the date of the member’s death and ending on the day before the effective date of this section.
“(2)
In addition to any reduction required under the provisions of subchapter II of
chapter 73 of title 10, United States Code, the annuity paid to any
surviving spouse under this section shall be reduced by any amount such
surviving spouse is entitled to receive as an annuity under subchapter I of such chapter.
“(c)
If an individual entitled to an annuity under this section is also entitled to an annuity under subchapter II of
chapter 73 of title 10, United States Code, based upon a subsequent marriage, the individual may not receive both annuities but must elect which to receive.
“(d) As used in this section:
“(1)
The term ‘uniformed services’ means the Armed Forces and the commissioned corps of the Public Health Service and of the National Oceanic and Atmospheric Administration.
“(3)
The term ‘Secretary concerned’ has the meaning given such term in
section 101(8) of title 10, United States Code, and includes the
Secretary of Commerce, with respect to matters concerning the
National Oceanic and Atmospheric Administration, and the Secretary of Health and Human Services, with respect to matters concerning the Public Health Service.”
Provision effective Dec. 1, 1980, applicable to annuities payable for months beginning on or after such date, and prohibiting accrual of benefits for any period before Oct. 9, 1980, see section 7 of Pub. L. 96–402, set out as a note under section 1447 of this title.
Election To Participate in the Survivor Benefit Plan and Withdraw From the Retired Serviceman’s Family Protection Plan
Pub. L. 92–425, § 3, Sept. 21, 1972, 86 Stat. 711, as amended by Pub. L. 93–155, title VIII, § 804, Nov. 16, 1973, 87 Stat. 615, provided that:
“(a) The Survivor Benefit Plan established pursuant to clause (3) of the first section of this Act [this subchapter] applies to any person who initially becomes entitled to retired or retainer pay on or after the effective date of this Act [Sept. 21, 1972]. An election made before that date by such a person under section 1431 of title 10, United States Code, is canceled. However, a person who initially becomes entitled to retired or retainer pay within 180 days after the effective date of this Act [Sept. 21, 1972] may, within 180 days after becoming so entitled, elect—
“(1)
not to participate in such Survivor Benefit
Plan if he is married or has a dependent child; or
“(b) Any person who is entitled to retired or retainer pay on the effective date of this Act [Sept. 21, 1972] may elect to participate in the Survivor Benefit Plan established pursuant to clause (3) of the first section of this Act [this subchapter] at any time within eighteen months after such date. However, such a person who is receiving retired or retainer pay reduced under section 1436(a) of title 10, United States Code, or who is depositing amounts under section 1438 of that title, may elect at any time within eighteen months after the effective date of this Act [Sept. 21, 1972]—
“(1)
to participate in the
Plan and continue his participation under chapter 73 of that title [this chapter] as in effect on the day before the effective date of this Act [
Sept. 21, 1972], except that the total of the annuities elected may not exceed 100 percent of his retired or retainer pay; or
“(2)
to participate in the
Plan and, notwithstanding section 1436(b) of that title, terminate his participation under chapter 73 of that title [this chapter] as in effect on the day before the effective date of this Act [
Sept. 21, 1972].
A person who elects under clause (2) of this subsection is not entitled to a refund of amounts previously deducted from his retired or retainer pay under
chapter 73 of title 10, United States Code [this chapter], as in effect on the day before the effective date of this Act [
Sept. 21, 1972], or any payments made thereunder on his behalf. A person who is not married or does not have a dependent child on the first anniversary of the effective date of this Act [
Sept. 21, 1972], but who later marries or acquires a dependent child, may elect to participate in the
Plan under the fourth sentence of section 1448(a) of that title [former subsec. (a) of this section].
“(c)
Notwithstanding the provisions of the Survivor Benefit
Plan established pursuant to clause (3) of the first section of this Act [this subchapter], and except as otherwise provided in this section, subchapter I of
chapter 73 of title 10, United States Code [subchapter I of this chapter] (other than the last two sentences of section 1436(a), section 1443, and section 1444(b)), as in effect on the day before the effective date of this Act [
Sept. 21, 1972], shall continue to apply in the case of persons, and their beneficiaries, who have elected annuities under section 1431 or 1432 of that title and who have not elected under subsection (b)(2) of this section to participate in that
Plan.
“(d) In this section, ‘base amount’ means—
“(1) the monthly retired or retainer pay to which a person—
“(A)
is entitled on the effective date of this Act [Sept. 21, 1972]; or
“(B)
later becomes entitled by being advanced on the retired list, performing active duty, or being transferred from the temporary disability retired list to the permanent disability retired list; or
“(2)
any amount less than that described in clause (1) designated by that person at the time he makes an election under subsection (a)(2) or (b) of this section, but not less than $300;
“(e)
An election made under subsection (a) or (b) of this section is effective on the date it is received by the Secretary concerned, as defined in
section 101(5) of title 37, United States Code.
“(f)
Sections
1449,
1453, and
1454 of title
10, United States Code, as added by clause (3) of the first section of this Act [as part of this subchapter], are applicable to persons covered by this section.”
Income Supplement for Certain Widows of Retired Members of the Uniformed Forces; Special Annuity for Widows of Commissioned Personnel of the Public Health Service and National Oceanic and Atmospheric Administration in Lieu of VA Pension
Pub. L. 92–425, § 4, Sept. 21, 1972, 86 Stat. 712, as amended by Pub. L. 94–496, § 2, Oct. 14, 1976, 90 Stat. 2375; Pub. L. 95–397, title II, § 209, Sept. 30, 1978, 92 Stat. 848; Pub. L. 96–402, § 6, Oct. 9, 1980, 94 Stat. 1708; Pub. L. 98–94, title IX, § 942(a), Sept. 24, 1983, 97 Stat. 654; Pub. L. 102–40, title IV, § 402(d)(2), May 7, 1991, 105 Stat. 239; Pub. L. 103–337, div. A, title X, § 1070(d)(4), Oct. 5, 1994, 108 Stat. 2858; Pub. L. 104–201, div. A, title VI, § 638(a)–(c), Sept. 23, 1996, 110 Stat. 2581; Pub. L. 105–85, div. A, title VI, § 645(b), Nov. 18, 1997, 111 Stat. 1801, provided that:
“(a) A person—
“(1)
who, on
September 21, 1972, was, or during the period beginning on
September 22, 1972, and ending on
March 20, 1974, became, a
widow of a person who was entitled to retired or retainer pay when he died;
“(2)
who is eligible for a pension under subchapter III of
chapter 15 of title 38, United States Code, or section 306 of the Veterans’ and Survivors’ Pension Improvement Act of 1978 [set out as note under
section 1521 of Title 38]; and
“(3)
whose annual income, as determined in establishing that eligibility, is less than the maximum annual rate of pension in effect under
section 1541(b) of title 38, United States Code;
shall be paid an annuity by the Secretary concerned unless she is eligible to receive an annuity under the Survivor Benefit
Plan established pursuant to clause (3) of the first section of this Act [this subchapter]. However, such a person who is the
widow of a retired officer of the Public Health Service or the
National Oceanic and Atmospheric Administration, and who would otherwise be eligible for an annuity under this section except that she does not qualify for the pension described in clause (2) of this subsection because the service of her deceased spouse is not considered active duty under
section 101(21) of title 38, United States Code, is entitled to an annuity under this section.
“(b)
The annuity under subsection (a) of this section shall be in an amount which when added to the
widow’s income determined under subsection (a)(3) of this section, plus the amount of any annuity being received under sections
1431–
1436 of title
10, United States Code, but exclusive of a pension described in subsection (a)(2) of this section, equals the maximum annual rate of pension in effect under
section 1541(b) of title 38, United States Code. In addition, the Secretary concerned shall pay to the
widow, described in the last sentence of subsection (a) of this section, an amount equal to the pension she would otherwise have been eligible to receive under subchapter III of
chapter 15 of title 38, United States Code, if the service of her deceased spouse was considered active duty under section 101(21) of that title.
“(c)
The amount of an annuity payable under this section, although counted as income in determining the amount of any pension described in subsection (a)(2) of this section, shall not be considered to affect the eligiblity [sic] of the recipient of such annuity for such pension, even though, as a result of including the amount of the annuity as income, no amount of such pension is due.
“(d)
Subsection 1450(i) and section 1453 as added to title 10, United States Code, by clause 3 of the first section of this Act, are applicable to persons covered by this section.
“(e)
(1)
Payment of annuities under this section shall be made by the Secretary of
Veterans Affairs. In making such payments, the Secretary shall combine with the payment under this section payment of any amount due the same person under section 653(d) of the
National Defense Authorization Act, Fiscal Year 1989 [
Pub. L. 100–456] (
10 U.S.C. 1448 note). If appropriate for administrative convenience (or otherwise determined appropriate by the Secretary of
Veterans Affairs), that Secretary may combine a payment to any person for any month under this section (and, if applicable, under section 653(d) of the
National Defense Authorization Act, Fiscal Year 1989) with any other payment for that month under laws administered by the Secretary so as to provide that person with a single payment for that month.
“(2)
The Secretary concerned shall annually transfer to the Secretary of
Veterans Affairs such amounts as may be necessary for payments by the Secretary of
Veterans Affairs under this section and for costs of the Secretary of
Veterans Affairs in administering this section. Such transfers shall be made from amounts that would otherwise be used for payment of annuities by the Secretary concerned under this section. The authority to make such a transfer is in addition to any other authority of the Secretary concerned to transfer funds for a purpose other than the purpose for which the funds were originally made available. In the case of a transfer by the Secretary of a military department, the provisions of
section 2215 of title 10, United States Code, do not apply.
“(3)
The Secretary concerned shall promptly notify the Secretary of Veterans Affairs of any change in beneficiaries under this section.”
[Pub. L. 104–201, div. A, title VI, § 638(d), Sept. 23, 1996, 110 Stat. 2581, provided that:
“The amendments made by this section [amending
section 4 of Pub. L. 92–425, set out above] take effect on
July 1, 1997, and apply with respect to payments of benefits for any month after June 1997.”
]
[Pub. L. 98–94, title IX, § 942(b), Sept. 24, 1983, 97 Stat. 654, provided that:
“Any annuity payable by reason of subsection (a) [amending
section 4(a)(1) of Pub. L. 92–425, set out above] shall be payable only for months after September 1983.”
]
End of 90-Day Period With Respect to Certain Individuals
The 90-day period, referred to in subsec. (a)(2), (4)(B), with respect to certain individuals shall be considered to end on Mar. 31, 1980, see section 208 of Pub. L. 95–397, set out as a note under section 1447 of this title.