
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 5USC8435]

 
             TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
 
                           PART III--EMPLOYEES
 
                   Subpart G--Insurance and Annuities
 
            CHAPTER 84--FEDERAL EMPLOYEES' RETIREMENT SYSTEM
 
                   SUBCHAPTER III--THRIFT SAVINGS PLAN
 
Sec. 8435. Protections for spouses and former spouses

    (a)(1)(A) A married employee or Member (or former employee or 
Member) may withdraw all or part of a Thrift Savings Fund account under 
subsection (b)(2), (3), or (4) of section 8433 of this title or change a 
withdrawal election only if the employee or Member (or former employee 
or Member) satisfies the requirements of subparagraph (B). A married 
employee or Member (or former employee or Member) may make a withdrawal 
from a Thrift Savings Fund account under subsection (c)(1) of section 
8433 of this title only if the employee or Member (or former employee or 
Member) satisfies the requirements of subparagraph (B).
    (B) An employee or Member (or former employee or Member) may make an 
election or change referred to in subparagraph (A) if the employee or 
Member and the employee's or Member's spouse (or the former employee or 
Member and the former employee's or Member's spouse) jointly waive, by 
written election, any right which the spouse may have to a survivor 
annuity with respect to such employee or Member (or former employee or 
Member) under section 8434 of this title or subsection (b).
    (2) Paragraph (1) shall not apply to an election or change of 
election by an employee or Member (or former employee or Member) who 
establishes to the satisfaction of the Executive Director (at the time 
of the election or change and in accordance with regulations prescribed 
by the Executive Director)--
        (A) that the spouse's whereabouts cannot be determined; or
        (B) that, due to exceptional circumstances, requiring the 
    spouse's waiver would otherwise be inappropriate.

    (b)(1) Notwithstanding any election under subsection (b) of section 
8434 of this title, the method described in subsection (a)(2)(B) of such 
section (or, if more than one form of such method is available, the form 
which the Board determines to be the one which provides for a surviving 
spouse a survivor annuity most closely approximating the annuity of a 
surviving spouse under section 8442 of this title) shall be deemed the 
applicable method under such subsection (b) in the case of an employee, 
Member, former employee, or former Member who is married on the date on 
which an annuity contract is purchased to provide for the employee's, 
Member's, former employee's, or former Member's annuity under this 
subchapter.
    (2) Paragraph (1) shall not apply if--
        (A) a joint waiver of such method is made, in writing, by the 
    employee or Member and the spouse; or
        (B) the employee or Member waives such method, in writing, after 
    establishing to the satisfaction of the Executive Director that 
    circumstances described under subsection (a)(2)(A) or (B) make the 
    requirement of a joint waiver inappropriate.

    (c)(1) An election or change of election shall not be effective 
under this subchapter to the extent that the election, change, or 
transfer conflicts with any court decree, order, or agreement described 
in paragraph (2).
    (2) A court decree, order, or agreement referred to in paragraph (1) 
is, with respect to an employee or Member (or former employee or 
Member), a court decree of divorce, annulment, or legal separation 
issued in the case of such employee or Member (or former employee or 
Member) and any former spouse of the employee or Member (or former 
employee or Member) or any court order or court-approved property 
settlement agreement incident to such decree if--
        (A) the decree, order, or agreement expressly relates to any 
    portion of the balance in the employee's or Member's (or former 
    employee's or Member's) account; and
        (B) notice of the decree, order, or agreement was received by 
    the Executive Director before--
            (i) the date on which payment is made, or
            (ii) in the case of an annuity, the date on which an annuity 
        contract is purchased to provide for the annuity,

    in accordance with the election, change, or contribution referred to 
    in paragraph (1).

    (3) The Executive Director shall prescribe regulations under which 
this subsection shall be applied in any case in which the Executive 
Director receives two or more decrees, orders, or agreements referred to 
in paragraph (1).
    (d)(1) Subject to paragraphs (2) through (7), a former spouse of a 
deceased employee or Member (or a deceased former employee or Member) 
who died after performing 18 or more months of service and a former 
spouse of a deceased former employee or Member who died entitled to an 
immediate or deferred annuity under subchapter II of this chapter is 
entitled to a survivor annuity under this subsection if and to the 
extent that--
        (A) an election under section 8434(a)(2)(E) of this title, or
        (B) any court decree, order, or agreement (described in 
    subsection (c)(2), without regard to subparagraph (B) of such 
    subsection) which relates to such deceased individual and such 
    former spouse,

expressly provides for such survivor annuity.
    (2) Paragraph (1) shall apply only to payments made by the Executive 
Director after the date on which the Executive Director receives written 
notice of the election, decree, order, or agreement, and such additional 
information and documentation as the Executive Director may require.
    (3) The amount of the survivor annuity payable from the Thrift 
Savings Fund to a former spouse of a deceased employee, Member, former 
employee, or former Member under this section may not exceed the excess, 
if any, of--
        (A) the amount of the survivor annuity determined for a 
    surviving spouse of the deceased employee, Member, former employee, 
    or former Member under the method described in subsection (b)(1), 
    over
        (B) the total amount of all other survivor annuities payable 
    under this subchapter to other former spouses of such deceased 
    employee, Member, former employee, or former Member based on the 
    order of precedence provided in paragraph (4).

    (4) If more than one former spouse of a deceased employee, Member, 
former employee, or former Member is entitled to a survivor annuity 
pursuant to this subsection, the amount of each such survivor annuity 
shall be limited appropriately to carry out paragraph (3) in the order 
of precedence established for the entitlements by the chronological 
order of the dates on which elections are properly made pursuant to 
section 8434(a)(2)(E) of this title and the dates on which the court 
decrees, orders, or agreements applicable to the entitlement were 
issued, as the case may be.
    (5) Subsections (c) and (d) of section 8445 of this title shall 
apply to an entitlement of a former spouse to a survivor annuity under 
this subsection.
    (6) For the purposes of this section, a court decree, order, or 
agreement or an election referred to in subsection (a) of this section 
shall not be effective, in the case of a former spouse, to the extent 
that the election is inconsistent with any joint waiver previously 
executed with respect to such former spouse under subsection (a)(2) or 
(b)(2).
    (7) Any payment under this subsection to any individual bars 
recovery by any other individual.
    (e)(1)(A) A loan or withdrawal may be made to a married employee or 
Member under section 8433(g) and (h) of this title only if the 
employee's or Member's spouse consents to such loan or withdrawal in 
writing.
    (B) A consent under subparagraph (A) shall be irrevocable with 
respect to the loan or withdrawal to which the consent relates.
    (C) Subparagraph (A) shall not apply to a loan or withdrawal to an 
employee or Member who establishes to the satisfaction of the Executive 
Director (at the time the employee or Member applies for such loan or 
withdrawal and in accordance with regulations prescribed by the 
Executive Director)--
        (i) that the spouse's whereabouts cannot be determined; or
        (ii) that, due to exceptional circumstances, requiring the 
    employee or Member to seek the spouse's consent would otherwise be 
    inappropriate.

    (2) An application for a loan or withdrawal under section 8433(g) 
and (h) of this title shall not be approved if approval would have the 
result described under subsection (c)(1).
    (f) Waivers and notifications required by this section and waivers 
of the requirements for such waivers and notifications (as authorized by 
this section) may be made only in accordance with procedures prescribed 
by the Executive Director.
    (g) Except with respect to the making of loans or withdrawals under 
section 8433(g) and (h), none of the provisions of this section 
requiring notification to, or the consent or waiver of, a spouse or 
former spouse of an employee, Member, former employee, or former Member 
shall apply in any case in which the nonforfeitable account balance of 
the employee, Member, former employee, or former Member is $3,500 or 
less.
    (h) The protections provided by this section are in addition to the 
protections provided by section 8467 of this title.

(Added Pub. L. 99-335, title I, Sec. 101(a), June 6, 1986, 100 Stat. 
547; amended Pub. L. 101-335, Secs. 5(c), 6(a)(3), July 17, 1990, 104 
Stat. 322, 323; Pub. L. 102-484, div. D, title XLIV, Sec. 4437(b), Oct. 
23, 1992, 106 Stat. 2724; Pub. L. 103-226, Sec. 9(d), (i)(9)-(15), Mar. 
30, 1994, 108 Stat. 120, 122; Pub. L. 104-208, div. A, title I, 
Sec. 101(f) [title VI, Sec. 659 [title II, Sec. 204]], Sept. 30, 1996, 
110 Stat. 3009-314, 3009-372, 3009-376.)


                               Amendments

    1996--Subsec. (a)(1)(A). Pub. L. 104-208, Sec. 101(f) [title VI, 
Sec. 659 [title II, Sec. 204(1)]], substituted ``may withdraw all or 
part of a Thrift Savings Fund account under subsection (b)(2), (3), or 
(4) of section 8433 of this title or change a withdrawal election'' for 
``may make an election under subsection (b)(3) or (b)(4) of section 8433 
of this title or change an election previously made under subsection 
(b)(1) or (b)(2) of such section'' and inserted at end ``A married 
employee or Member (or former employee or Member) may make a withdrawal 
from a Thrift Savings Fund account under subsection (c)(1) of section 
8433 of this title only if the employee or Member (or former employee or 
Member) satisfies the requirements of subparagraph (B).''
    Subsec. (c)(1). Pub. L. 104-208, Sec. 101(f) [title VI, Sec. 659 
[title II, Sec. 204(2)(A)]], substituted ``An election or change of 
election'' for ``An election, change of election, or modification of the 
commencement date of a deferred annuity'' and ``or transfer'' for 
``modification, or transfer''.
    Subsec. (c)(2)(B). Pub. L. 104-208, Sec. 101(f) [title VI, Sec. 659 
[title II, Sec. 204(2)(B)]], struck out ``modification,'' after 
``change,'' in closing provisions.
    Subsec. (e)(1). Pub. L. 104-208, Sec. 101(f) [title VI, Sec. 659 
[title II, Sec. 204(3)(A)]], in subpar. (A) inserted ``or withdrawal'' 
after ``A loan'', ``and (h)'' after ``8433(g)'', and ``or withdrawal'' 
after ``such loan'', in subpar. (B) inserted ``or withdrawal'' after 
``loan'', and in subpar. (C) inserted ``or withdrawal'' after ``to a 
loan'' and after ``for such loan''.
    Subsec. (e)(2). Pub. L. 104-208, Sec. 101(f) [title VI, Sec. 659 
[title II, Sec. 204(3)(B)(i)]], inserted ``or withdrawal'' after 
``loan''.
    Pub. L. 104-208, Sec. 101(f) [title VI, Sec. 659 [title II, 
Sec. 204(3)(B)(ii)]], which directed insertion of ``and (h)'' after 
``8344(g)'', was executed by making the insertion after ``8433(g)'' to 
reflect the probable intent of Congress.
    Subsec. (g). Pub. L. 104-208, Sec. 101(f) [title VI, Sec. 659 [title 
II, Sec. 204(4)(A)]], inserted ``or withdrawals'' after ``loans''.
    Pub. L. 104-208, Sec. 101(f) [title VI, Sec. 659 [title II, 
Sec. 204(4)(B)]], which directed insertion of ``and (h)'' after 
``8344(g)'' was executed by making the insertion after ``8433(g)'' to 
reflect the probable intent of Congress.
    1994--Subsec. (a)(1)(A). Pub. L. 103-226, Sec. 9(d)(1), substituted 
``subsection (b)(3) or (b)(4) of section 8433 of this title or change an 
election previously made under subsection (b)(1) or (b)(2)'' for 
``subsection (b)(3), (b)(4), (c)(3), or (c)(4) of section 8433 of this 
title or change an election previously made under subsection (b)(1), 
(b)(2), (c)(1), or (c)(2)''.
    Subsec. (a)(1)(B). Pub. L. 103-226, Sec. 9(i)(9), substituted 
``subsection (b)'' for ``subsection (c)''.
    Subsec. (b). Pub. L. 103-226, Sec. 9(d)(4), amended par. (2) 
generally. Prior to amendment, par. (2) read as follows: ``Paragraph (1) 
shall not apply--
        ``(A) in the case of an employee or Member retiring under 
    section 8412, 8413, 8414, or 8451 of this title, or who separates 
    from Government employment pursuant to regulations under section 
    3502(a) of this title or procedures under section 3595(a) of this 
    title in a reduction in force, if--
            ``(i) a joint waiver of such method is made, in writing, by 
        the employee or Member and the spouse; or
            ``(ii) the employee or Member waives such method, in 
        writing, after establishing to the satisfaction of the Executive 
        Director that circumstances described in subsection (a)(2)(A) or 
        (a)(2)(B) make the requirement of a joint waiver inappropriate; 
        or
        ``(B) in the case of an employee or Member not covered by 
    subparagraph (A), if the employee or Member waives such method 
    after--
            ``(i) having provided notification to the spouse of intent 
        to waive; or
            ``(ii) establishing to the satisfaction of the Executive 
        Director that the whereabouts of such spouse cannot be 
        determined.''
    Pub. L. 103-226, Sec. 9(d)(2), redesignated subsec. (c) as (b) and 
struck out former subsec. (b) which read as follows:
    ``(b)(1) Except as provided in paragraph (2), a transfer may be made 
by an employee or Member (or former employee or Member) under section 
8433(d) of this title only after the Executive Director notifies any 
current spouse and each former spouse of the employee or Member (or 
former employee or Member), if any, that the transfer is to be made.
    ``(2) Paragraph (1) may be waived with respect to a spouse or former 
spouse if the employee or Member (or former employee or Member) 
establishes to the satisfaction of the Executive Director that the 
whereabouts of such spouse or former spouse cannot be determined.''
    Subsec. (c). Pub. L. 103-226, Sec. 9(d)(3), (5), redesignated 
subsec. (d) as (c) and, in par. (1), struck out ``and a transfer may not 
be made under section 8433(d) of this title'' after ``effective under 
this subchapter''. Former subsec. (c) redesignated (b).
    Subsec. (d). Pub. L. 103-226, Sec. 9(d)(3), redesignated subsec. (e) 
as (d). Former subsec. (d) redesignated (c).
    Subsec. (d)(1)(B). Pub. L. 103-226, Sec. 9(i)(10), substituted 
``subsection (c)(2)'' for ``subsection (d)(2)''.
    Subsec. (d)(3)(A). Pub. L. 103-226, Sec. 9(i)(11), substituted 
``subsection (b)(1)'' for ``subsection (c)(1)''.
    Subsec. (d)(6). Pub. L. 103-226, Sec. 9(i)(12), substituted ``or 
(b)(2)'' for ``or (c)(2)''.
    Subsec. (e). Pub. L. 103-226, Sec. 9(d)(3), redesignated subsec. (f) 
as (e). Former subsec. (e) redesignated (d).
    Subsec. (e)(1)(A). Pub. L. 103-226, Sec. 9(i)(13), substituted 
``section 8433(g)'' for ``section 8433(i)''.
    Subsec. (e)(2). Pub. L. 103-226, Sec. 9(i)(14), substituted 
``section 8433(g) of this title shall not be approved if approval would 
have the result described under subsection (c)(1)'' for ``section 
8433(i) of this title shall not be approved if approval would have the 
result described in subsection (d)(1)''.
    Subsec. (f). Pub. L. 103-226, Sec. 9(d)(3), redesignated subsec. (g) 
as (f). Former subsec. (f) redesignated (e).
    Subsec. (g). Pub. L. 103-226, Sec. 9(d)(3), (i)(15), redesignated 
subsec. (h) as (g) and substituted ``section 8433(g)'' for ``section 
8433(i)''. Former subsec. (g) redesignated (f).
    Subsecs. (h), (i). Pub. L. 103-226, Sec. 9(d)(3), redesignated 
subsec. (i) as (h). Former subsec. (h) redesignated (g).
    1992--Subsec. (c)(2)(A). Pub. L. 102-484 inserted ``, or who 
separates from Government employment pursuant to regulations under 
section 3502(a) of this title or procedures under section 3595(a) of 
this title in a reduction in force,'' after ``8451 of this title''.
    1990--Subsec. (c)(1). Pub. L. 101-335, Sec. 5(c)(1), inserted ``an 
annuity contract is purchased to provide for'' after ``the date on 
which'' and struck out ``commences'' after ``former Member's annuity''.
    Subsec. (d)(2)(B)(ii). Pub. L. 101-335, Sec. 5(c)(2), substituted 
``an annuity contract is purchased to provide for the annuity'' for 
``the annuity commences''.
    Subsecs. (h), (i). Pub. L. 101-335, Sec. 6(a)(3), added subsec. (h) 
and redesignated former subsec. (h) as (i).


                    Effective Date of 1996 Amendment

    Amendment by Pub. L. 104-208 effective Sept. 30, 1996, and 
withdrawals and elections as provided under such amendment to be made at 
earliest practicable date as determined by Executive Director in 
regulations, see section 101(f) [title VI, Sec. 659 [title II, 
Sec. 207]] of Pub. L. 104-208, set out as a note under section 5545a of 
this title.


                    Effective Date of 1994 Amendment

    Amendment by Pub. L. 103-226 effective Mar. 10, 1995, see section 
9(j) of Pub. L. 103-226, set out as a note under section 8351 of this 
title.


                    Effective Date of 1992 Amendment

    Amendment by Pub. L. 102-484 applicable with respect to separations 
occurring after Dec. 31, 1993, or such earlier date as Executive 
Director (appointed under section 8474 of this title) may by regulation 
prescribe, see section 4437(d) of Pub. L. 102-484, set out as a note 
under section 8351 of this title.


                    Effective Date of 1990 Amendment

    Amendment by section 5(c) of Pub. L. 101-335 effective Apr. 1, 1987, 
see section 5(d) of Pub. L. 101-335, set out as a note under section 
8433 of this title.
    Amendment by section 6(a)(3) of Pub. L. 101-335 effective as of 
second election period described in section 8432(b) of this title 
beginning after July 17, 1990, or such earlier date as Executive 
Director may by regulation prescribe, and applicable with respect to 
separations occurring before, on, or after that effective date, see 
section 6(c) of Pub. L. 101-335, set out as a note under section 8351 of 
this title.

                  Section Referred to in Other Sections

    This section is referred to in sections 8351, 8433, 8434, 8436 of 
this title.
