SUPPLEMENTARY INFORMATION:

On June 26, 2013, the U.S. Supreme Court issued United States v. Windsor,^[1] where it struck down section 3 of Defense of Marriage Act (DOMA), 1 U.S.C. 7 (1996), as unconstitutional inasmuch as it required the Federal Government to treat same-sex marriages differently from opposite-sex marriages for purposes of determining entitlement to federal benefits. The Windsor decision, however, did not address whether state laws prohibiting the legal recognition of same-sex marriages were similarly unconstitutional. As a result, there was a period after Windsor where some jurisdictions allowed for the legal recognition of same-sex marriages and some did not. Thereafter, the U.S. Supreme Court issued United States v. Obergefell on June 26, 2015 ^[2] striking down state laws that prohibited the legal recognition of same-sex marriages as unconstitutional.

After the U.S. Supreme Court issued Windsor, OPM published two Federal Register notices. The first notice, 78 FR 47018 (Aug. 2, 2013), informed affected annuitants that they had an extended opportunity, until June 26, 2015—or two years after Windsor was issued—to elect a survivor annuity for a same-sex spouse if the couple had married prior to Windsor and the annuitant had been prevented by section 3 of DOMA from making a timely election. The second notice, 79 FR 57589 (Sept. 25, 2014), informed same-sex surviving spouses of deceased federal employees or annuitants who died before Windsor, that they may apply for survivor benefits or re-apply (if previously denied benefits as a result of DOMA) so that OPM may process their applications in accordance with the Windsor decision. In both these notices, OPM indicated that for purposes of determining entitlement to federal retirement benefits, OPM would recognize same-sex marriages legally entered into, whether or not the affected individual's domicile would legally recognize that marriage.

Thus, consistent with OPM's prior Federal Register notices and consistent with the holdings in Windsor and Obergefell, OPM is providing this notice to affected same-sex surviving spouses of deceased Federal employees or annuitants regarding when and under what circumstances OPM will deem the 9-month marriage requirement satisfied under 5 U.S.C. 8341(a), 8441(1)-(2) for purposes of determining an applicant's entitlement to survivor annuity benefits and/or (if applicable) to a BEDB:

If an applicant for survivor annuity benefits and/or a BEDB can show—

• The applicant was in a same-sex marriage with a deceased employee or annuitant;and
• But for the 9-month marriage requirement under5 U.S.C. 8341(a) and 8441(1)-(2), the applicant would be eligible for survivor annuity benefits (and/or a BEDB, if applicable); and
• The applicant was married to the deceased employee or annuitant prior to the Supreme Court issuingWindsor on June 26, 2013; or ( printed page 64235)
• The applicant was married to the deceased employee or annuitant within one year from the date the Supreme Court issuedWindsor on June 26, 2013; or
• The applicant was married to the deceased employee or annuitant within one yearafte r the Supreme Court issued Obergefell on June 26, 2015, in circumstances where the couple resided in a jurisdiction that prohibited same-sex marriage at any time after Windsor

—OPM will deem the 9-month marriage requirement satisfied for purposes of determining entitlement to survivor annuity benefits and/or a BEDB.

Additionally, if an affected applicant (as indicated above) was married to the deceased annuitant after retirement, and is additionally unable to show that the annuitant elected a survivor annuity benefit on the applicant's behalf within 2 years of marriage, as required by 5 U.S.C. 8341(b)(3), 8339(j)(5)(C) and (k)(2), 8416(b)-(c), and 8442(a)(2), the applicant may submit evidence to OPM showing that the annuitant intended to elect a survivor annuity for the applicant, and that but for the provisions under DOMA and/or state laws prohibiting same-sex marriage, the annuitant would have timely elected a survivor annuity on the applicant's behalf. OPM will consider any documentary evidence for this purpose, either in its own files or submitted by the applicant, that shows that the annuitant attempted to elect a survivor annuity for the applicant through correspondence with OPM.

Determinations regarding an affected applicant's corresponding entitlement to Federal Employees Health Benefits (FEHB) will be governed by the provisions under chapter 89 of title 5, United States Code; part 890 of title 5, Code of Federal Regulations; and the guidance OPM published in its Federal Register notice, Post-DOMA Survivor Annuitant Federal Health Benefit Waiver Criteria, 80 FR 74,817 (Nov. 30, 2015).

How To Apply for Benefits: If you are an affected same-sex spouse of a deceased federal employee or annuitant, you may submit an application for death benefits to OPM, Standard Form (SF) 2800 for CSRS and SF 3104 for FERS (or you may resubmit an application if OPM previously denied you survivor annuity benefits or a BEDB because you could not establish you had met the 9-month marriage requirement). You may download these application forms from OPM's website at http://www.opm.gov/​forms/​standard-forms/​, and may submit your applications to this address: Office of Personnel Management, Attention: DOMA-9MMR, P.O. Box 45, Boyers, PA 16017-0045. If, in the alternative, you would prefer OPM mail you an application for benefits or if you have questions regarding submitting your application, you may write OPM using the address provided above, or you may call OPM's Retirement Information Office at 1-888-767-6738 or may send an email to retire@opm.gov.

86 FR 64234