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Election by Servicemember

Prior to retirement, a servicemember is required to complete a DD Form 2656, Data for Payment of Retired Personnel, which also includes the Survivor Benefit Plan election.  If married, the servicemember is required to obtain his/her spouse's notarized signature to elect less than full coverage.  If divorced, the form has a place to select former spouse coverage, but the former spouse's signature is not required for this form.

To convert an existing SBP spouse coverage election into former spouse coverage, the retiree and former spouse must complete a DD Form 2656-1, Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage, and indicate whether the election is being made pursuant to a court order, a written agreement, or voluntarily. This distinction is significant, as it affects whether the retiree can unilaterally change the former spouse coverage.

The DD Form 2656-1 to convert the coverage from spouse to former spouse must be submitted within one year of the court order requiring coverage. A needless-sounding bit of bureaucracy, but an important one - unless this is done, the former spouse will not be covered.

Finally, 10 USC 1448(b)(3) is the statutory authority to convert spouse coverage into former spouse coverage for a retiree already participating in the plan.  It states that a person participating in SBP "may... elect to provide an annuity to that former spouse."  This does not, on its face, limit the coverage to the same dollar amount already in effect.  However, the guidance being put out by the military is that the benefit level may not be changed upon the election - it is either for the same amount, or zero, but not a lesser amount of coverage.

 

Deemed Election by Former Spouse

The DD Form 2656 does not require a former spouse's signature.  To prevent that former spouse from being at the mercy of a retiring servicemember who does not elect former spouse coverage, 10 U.S.Code § 1450(3) authorizes the former spouse directly to elect former spouse coverage.

The former spouse may do this deemed election within one year of the order requiring former spouse SBP coverage by completing a DD Form 2656-10, Survivor Benefit Plan (SBP) / Reserve Component (RC) SBP Request For Deemed Election, and sending it along with a copy of the order to:

Defense Finance and Accounting Service
U.S. Military Retirement Pay
P.O. Box 7130
London, KY 40742-7130

FAX: 1-800-469-6559

If the election is not done within one year of the order, or if the servicemember fails to elect former spouse coverage upon retirement, SBP could be irretrievably lost despite the divorce court's order. Therefore, for his/her protection, the former spouse should always do a deemed election, and not depend upon the servicemember to make a timely election of former spouse coverage.

 

Have a military divorce case? Deployed? Black & Graham can help.

(719) 328-1616

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