Court Rules Against Former Spouse Survivor Annuity

The U.S. Court of Appeals for the Federal Circuit recently ruled that a surviving spouse of a deceased federal employee was not entitled to a survivor annuity because she had voluntarily signed the form waiving her right to an annuity. Braza v. OPM, No. 2008-3174 (3/16/10) (en banc). The court affirmed the Merit Systems Protection Board that the former spouse had signed an OPM form (SF 2801-2) consenting to her late husband receiving an unreduced annuity during his lifetime without providing for a survivor annuity for her. Although she hadn't seen the form before, did not ask for or receive any explanation as to what she was signing, and did not read the form before completing and signing it at a local bank before a notary public, OPM denied her claim finding that she had waived her right to a survivor annuity by completing and signing the form, and the MSPB affirmed OPM's decision.

The court ruled in a 9-2 decision that while the Spouse Equity Act of 1984 was enacted to provide spouses of retired federal employees with a default entitlement to a survivor annuity, by voluntarily signing the OPM form Ms. Braza agreed to relinquish her annuity, and her election was binding absent a showing of fraud, duress, or mental incompetence, citing Collins v. OPM, 45 F.3d 1569 (Fed. Cir. 1995). The majority found that the form in use at the time was sufficient to inform the reader of her statutory right as a spouse of a federal employee and the impact of signing the form. It rejected her contention that the circumstances under which she signed the form were inconsistent with finding a knowing waiver of a known right. Her neglect to read the waiver form before signing it does not release her from the binding effect of the waiver.

The dissenting opinion contended that the spousal waiver form " did not come close to adequately informing spouses of retiring civil service employees of their statutory right to a waiver."It continued that " nothing on the form adequately provides that, if the spouse does not sign, she will have a statutory right to receive her own annuity for her life if the employee-spouse predeceases her."Only the form signed by the retired federal employee explained that his spouse would receive a full survivor annuity if she didn't waive the right to her entitlement. " Particularly in this context and given the deficiencies in the form, it is simply unrealistic to expect those signing the form to read or understand the information essential to an effective waiver of their statutory right."

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com