
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: 5USC8442]

 
             TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
 
                           PART III--EMPLOYEES
 
                   Subpart G--Insurance and Annuities
 
            CHAPTER 84--FEDERAL EMPLOYEES' RETIREMENT SYSTEM
 
                    SUBCHAPTER IV--SURVIVOR ANNUITIES
 
Sec. 8442. Rights of a widow or widower

    (a)(1) Except as provided in subsection (g), if an annuitant dies 
and is survived by a widow or widower, the widow or widower is entitled 
to an annuity equal to 50 percent of an annuity computed under section 
8415 with respect to the annuitant, (or one-half thereof, if designated 
for this purpose under section 8419 of this title), unless--
        (A) the right to an annuity was waived under section 8416(a) 
    (and no election was subsequently made under section 8416(d) 
    nullifying the waiver); or
        (B) in the case of a marriage after retirement, the annuitant 
    did not file an election under section 8416(b) or (c), as the case 
    may be.

    (2) A spouse acquired after retirement is entitled to an annuity 
under this subsection (as provided in paragraph (1)) only upon electing 
this annuity instead of any other survivor benefit to which such spouse 
may be entitled under this subchapter or section 8424 or under another 
retirement system for Government employees.
    (b)(1) If an employee or Member dies after completing at least 18 
months of civilian service creditable under section 8411 and is survived 
by a widow or widower, the widow or widower is entitled to--
        (A) an amount equal to the sum of--
            (i) 50 percent of the final annual rate of basic pay (or of 
        the average pay, if higher) of the employee or Member; and
            (ii) $15,000 as adjusted under section 8462(e); and

        (B) if the employee or Member completed at least 10 years of 
    service, an annuity equal to 50 percent of an annuity computed under 
    section 8415 with respect to the employee or Member, but without 
    regard to subsection (f) of such section.

    (2) The Office shall prescribe regulations under which the total 
amount payable to a widow or widower under paragraph (1)(A) may, at the 
election of the widow or widower, be paid--
        (A) in a lump sum; or
        (B) on a monthly basis--
            (i) over a period of 3 years beginning on the day after the 
        employee's or Member's death; or
            (ii) over any other period established under the 
        regulations.

Any method of payment provided for under subparagraph (B) shall be 
designed such that the present value of the benefits provided under such 
method is actuarially equivalent to the present value of a lump-sum 
payment under subparagraph (A).
    (3) An amount payable under paragraph (1)(A) shall not be considered 
to be part of an annuity for purposes of this chapter.
    (c)(1) If a former employee or Member dies after having separated 
from the service with title to a deferred annuity under section 8413 but 
before having established a valid claim for an annuity, and is survived 
by a widow or widower to whom married on the date of separation, the 
widow or widower may elect to receive--
        (A) an annuity under paragraph (2); or
        (B) the lump-sum credit, if the widow or widower is the 
    individual who would be entitled to the lump-sum credit and if such 
    widow or widower files application therefor with the Office.

    (2)(A)(i) Subject to clause (ii) and subparagraph (B)(ii), the 
annuity of the widow or widower is equal to 50 percent of an annuity 
computed under section 8415 for the former employee or Member.
    (ii)(I) In computing an amount under section 8415 for a former 
employee or Member (described in subclause (II)) in order to compute the 
annuity for a widow or widower under this subsection, the computation 
under section 8415 shall be made as if the former employee or Member had 
attained the applicable minimum retirement age under section 8412(h).
    (II) This clause applies with respect to a former employee or Member 
who dies before having attained the applicable minimum retirement age 
under section 8412(h).
    (B)(i) Notwithstanding the first sentence of subsection (d)(1), the 
annuity of the widow or widower of a former employee or Member under 
subparagraph (A)(ii) commences--
        (I) on the day after the date on which the former employee or 
    Member would have attained age 62 (or, if applicable, either age 60 
    if the former employee or Member completed at least 20 years of 
    service, or the applicable minimum retirement age (under section 
    8412(h)) if the former employee or Member completed at least 30 
    years of service); or
        (II) if the widow or widower so designates in the election, as 
    of the day after the death of the former employee or Member.

    (ii) The present value of the annuity of a widow or widower who 
chooses the earlier commencement date under clause (i)(II) shall be 
actuarially equivalent to the present value of an annuity computed for 
the widow or widower, determined as if the commencement date under 
clause (i)(I) were applicable.
    (3)(A) Paragraphs (1) and (2) shall apply only in the case of an 
employee or Member who completes at least 10 years of service.
    (B) Nothing in this subsection shall be considered to affect the 
provisions of this chapter relating to a lump-sum credit in the case of 
the widow or widower of a former employee or Member who dies after 
completing less than 10 years of service.
    (d)(1) The annuity of a widow or widower under this section 
commences on the day after the death of the individual on whose service 
such annuity is based. This annuity and the right thereto terminate on 
the last day of the month before the widow or widower--
        (A) dies; or
        (B) except as provided in paragraph (3), remarries before 
    becoming 55 years of age.

    (2) In the case of a widow or widower whose annuity under this 
section is terminated because of remarriage before becoming 55 years of 
age, the annuity shall be restored at the same rate commencing on the 
day the remarriage is dissolved by death, divorce, or annulment, if--
        (A) the widow or widower elects to receive this annuity instead 
    of any other survivor benefit to which such widow or widower may be 
    entitled (under this subchapter or section 8424 or under another 
    retirement system for Government employees) by reason of the 
    remarriage; and
        (B) any lump sum paid on termination of the annuity is returned 
    to the Fund.

    (3) Paragraph (1)(B) (relating to termination of a survivor annuity 
because of a remarriage before age 55) shall not apply if the widow or 
widower was married for at least 30 years to the individual on whose 
service the survivor annuity is based.
    (e) The requirement in paragraphs (1)(A) and (2)(A) of section 8441 
that the widow or widower of an annuitant, employee, or Member, or of a 
former employee or Member, have been married to such individual for at 
least 9 months immediately before the death of the individual in order 
to qualify as the widow or widower of such individual shall be deemed 
satisfied in any case in which the individual dies within the applicable 
9-month period, if--
        (1) the death of the individual was accidental; or
        (2) the surviving spouse of the individual had been previously 
    married to such individual and subsequently divorced, and the 
    aggregate time married is at least 9 months.

    (f)(1) Subject to paragraph (4), a survivor who is entitled to an 
annuity under subsection (a) shall also be entitled to a supplementary 
annuity under this subsection.
    (2) A supplementary annuity under this subsection shall be equal to 
the lesser of--
        (A) the amount by which the survivor's assumed CSRS annuity 
    exceeds the annuity payable to such survivor under subsection (a); 
    or
        (B) the amount determined under paragraph (3).

    (3)(A) Except as provided in subparagraph (B), the amount under this 
paragraph for a survivor is the amount of widow's or widower's insurance 
benefits which would be payable to such survivor under title II of the 
Social Security Act (without regard to sections 202(e)(7), 202(f)(2), 
and 203 of such Act) based on the wages and self-employment income of 
the deceased annuitant, and determined--
        (i) as of the date on which the annuitant died; and
        (ii) as if the survivor had attained age 60 and made application 
    for those benefits under subsection (e) or (f) of section 202 of 
    such Act, as the case may be.

    (B) Any computation or determination under this paragraph shall be 
made in accordance with the applicable provisions of the Social Security 
Act, except that in computing any primary insurance amount under section 
215 of such Act for purposes of determining an amount under this 
subsection, subparagraphs (A) and (C) of section 8421(b)(2) shall apply.
    (4) A supplementary annuity under this subsection--
        (A) shall be payable to a survivor only for calendar months 
    ending before the calendar month in which such survivor first 
    satisfies the minimum age requirement under section 202(e)(1)(B)(i) 
    or 202(f)(1)(B)(i) of the Social Security Act, as the case may be;
        (B) shall not be payable to a survivor who would not be entitled 
    to benefits under subsection (e) or (f) of section 202 of the Social 
    Security Act based on the wages and self-employment income of the 
    deceased annuitant (determined, as of the date of the annuitant's 
    death, as if the survivor had attained age 60 and made appropriate 
    application for benefits, but without regard to any restriction 
    under either such subsection relating to remarriage); and
        (C) shall not be payable to a survivor for any calendar month in 
    which such survivor is entitled (or would, on proper application, be 
    entitled) to benefits under section 202(g) of the Social Security 
    Act (relating to mother's and father's insurance benefits), or under 
    section 202(e) or (f) of such Act by reason of having become 
    disabled, based on the wages and self-employment income of the 
    deceased annuitant.

    (5) For the purpose of this subsection, the term ``assumed CSRS 
annuity'', as used in the case of a survivor, means the amount of the 
annuity to which such survivor would be entitled under subchapter III of 
chapter 83 of this title based on the service of the deceased annuitant, 
determined--
        (A) as of the day after the date of the annuitant's death;
        (B) as if the survivor had made appropriate application 
    therefor; and
        (C) as if the service of the deceased annuitant were creditable 
    under such subchapter.

    (6) An amount payable under this subsection shall be adjusted under 
section 8462 and shall otherwise be treated under this chapter in the 
same way as an amount payable under subsection (a).
    (g)(1) If the widow or widower of an annuitant under section 8452 
(hereinafter in this subsection referred to as a ``disability 
annuitant'') is determined under subsection (a) to be entitled to an 
annuity based on the service of such disability annuitant, the annuity 
of the widow or widower shall be equal to 50 percent of the amount 
determined under paragraph (2) (or one-half thereof if designated for 
this purpose under section 8419 of this title), rather than of the 
amount referred to in subsection (a).
    (2)(A) Except as provided in subparagraph (B), the amount on which 
the annuity of the widow or widower of a disability annuitant is based 
shall be the amount of the annuity to which such disability annuitant 
was entitled, as computed under section 8452 (including appropriate 
reduction under subsection (a)(2) of such section and any adjustments 
under section 8462 allowed under section 8452), as of the day before the 
date of the disability annuitant's death.
    (B)(i) In the case of a widow or widower entitled to an annuity 
based on the service of a disability annuitant who dies before age 62, 
the amount under clause (ii) shall apply instead of the amount which 
would otherwise apply under subparagraph (A).
    (ii)(I) Subject to subclause (II), the amount of the annuity to 
which the disability annuitant was entitled as of the day before the 
date of death shall be considered to be the amount which would be 
computed with respect to such disability annuitant under section 8452(b) 
if the disability annuitant had attained age 62 on the day before date 
of death.
    (II) For purposes of any such computation under section 8452(b)(2) 
pursuant to this clause, creditable service shall (in addition to the 
service which would otherwise be used under subparagraph (B)(i) of such 
section) include the period of time between date of death and the date 
of the sixty-second anniversary of the birth of the annuitant, and 
average pay shall be adjusted in accordance with subparagraph (B)(ii) of 
such section only through date of death.
    (h) The following rules shall apply notwithstanding any other 
provision of this section:
        (1) The annuity payable under this section to a widow or widower 
    may not exceed the difference between--
            (A) the amount of the annuity which would otherwise be 
        payable to such widow or widower under this section; and
            (B) the amount of the annuity payable to any former spouse 
        of the deceased employee, Member, or annuitant, or former 
        employee or Member, based on an election made under section 
        8417(b) or a court order previously issued or agreement 
        previously entered into as described in section 8445(a).

        (2) The amount payable under subsection (b)(1)(A) to a widow or 
    widower may not exceed the difference between--
            (A) the amount which would otherwise be payable to such 
        widow or widower under such subsection; and
            (B) the portion of such amount payable to any former spouse 
        of the deceased employee, Member, or annuitant, or former 
        employee or Member, based on a court order previously issued or 
        agreement previously entered into.

        (3) A lump-sum credit under subsection (c)(2) shall be subject 
    to the same terms and conditions as apply with respect to a lump-sum 
    credit under section 8424(b).

(Added Pub. L. 99-335, title I, Sec. 101(a), June 6, 1986, 100 Stat. 
559; amended Pub. L. 99-556, title I, Sec. 120, Oct. 27, 1986, 100 Stat. 
3134; Pub. L. 100-238, title I, Sec. 131(b), Jan. 8, 1988, 101 Stat. 
1760; Pub. L. 105-61, title V, Sec. 518(b)(1), Oct. 10, 1997, 111 Stat. 
1307.)

                       References in Text

    The Social Security Act, referred to in subsec. (f)(3), (4), is act 
Aug. 14, 1935, ch. 531, 49 Stat. 620, as amended, which is classified 
generally to chapter 7 (Sec. 301 et seq.) of Title 42, The Public Health 
and Welfare. Title II of the Social Security Act is classified generally 
to subchapter II (Sec. 401 et seq.) of chapter 7 of Title 42. Sections 
202, 203, and 215 are classified to sections 402, 403, and 415, 
respectively, of Title 42. For complete classification of this Act to 
the Code, see section 1305 of Title 42 and Tables.


                               Amendments

    1997--Subsec. (d)(1)(B). Pub. L. 105-61, Sec. 518(b)(1)(B), 
substituted ``except as provided in paragraph (3), remarries'' for 
``remarries''.
    Subsec. (d)(3). Pub. L. 105-61, Sec. 518(b)(1)(A), added par. (3).
    1988--Subsec. (a)(1). Pub. L. 100-238, Sec. 131(b)(1), inserted 
``(or one-half thereof, if designated for this purpose under section 
8419 of this title),'' after ``with respect to the annuitant,''.
    Subsec. (g)(1). Pub. L. 100-238, Sec. 131(b)(2), inserted ``(or one-
half thereof if designated for this purpose under section 8419 of this 
title)'' after ``paragraph (2)''.
    1986--Subsec. (c)(2)(B)(i)(I). Pub. L. 99-556 which directed that 
subsec. (c)(2)(B)(i)(I) of this section be amended generally was 
executed to subsec. (c)(2)(B)(i)(I) of this section, as the probable 
intent of Congress. Prior to the amendment, subcl. (I) read as follows: 
``on the day after the date on which the former employee or Member would 
have attained age 62; or''.


                    Effective Date of 1997 Amendment

    Amendment by Pub. L. 105-61 applicable with respect to remarriages 
occurring on or after Jan. 1, 1995, see section 518(c) of Pub. L. 105-
61, set out as a note under section 8341 of this title.

                  Section Referred to in Other Sections

    This section is referred to in sections 8416, 8417, 8419, 8435, 
8445, 8462, 8468, 8901 of this title; title 22 section 4071d; title 38 
section 7438; title 50 section 2154.
