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is not paid until the survivor submits Form JF-38, Application for Death Benefits, supported by such proof as may be required, for example, death, marriage, and/or divorce certificates. In the event that such is not submitted during an otherwise eligible beneficiary's lifetime, no annuity is due or payable to the beneficiary's estate. [46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970, Mar. 27, 1981)

paid upon termination of the annuity is returned to the Fund. The termination of a surviving spouse annuity due to remarriage does not apply to a survivor annuitant who is a surviving spouse of a participant who died in service or retired before October 1, 1976, unless elected following a marriage after retirement under circumstances described in $ 19.10-3 or $19.10-4.

(b) A surviving spouse or former spouse shall not become entitled to a survivor annuity or to the restoration of a survivor annuity payable from the Fund unless the survivor elects to receive it instead of any other survivor annuity to which entitled under this or any other retirement system for Government employees. (For this purpose, neither the Social Security system nor the military retirement system is considered a retirement system for Government employees.) This restriction does not apply to a survivor annuitant who is a surviving spouse of a participant who died in service or retired before October 1, 1976, unless the survivor annuity was elected under circumstances described in $ 19.10-3 or $ 19.10 4.

(c) A child's annuity begins on the day after the participant dies, or if a child is not then qualified, on the first day of the month in which the child becomes eligible. A child's annuity shall terminate on the last day of the month which precedes the month in which eligibility ceases.

(d) Regular and supplemental survivor annuities to a spouse or former spouse of an annuitant described in $$ 19.11-2, 19.11-3 and 19.10-6(b) are increased from their effective date by the cumulative percentage of cost-of-living increases the annuitant was receiving under section 826 of the Act at death. All annuities payable to survivors on the date a cost-of-living adjustment becomes effective are increased by that percentage except (1) the first increase to a surviving spouse of a participant who dies in service shall be pro rated and (2) additional survivor annuities under $19.10-5 when the spousal agreement authorizing the annuity makes no

provision for cost-of-living increases.

(e) The annuity of survivors becomes effective as specified in this section but

§ 19.11-6 Death during active duty.

(a) Annuity for surviving former spouse. In the event a participant dies before separation from the Service and leaves a former spouse, such former spouse is entitled to a regular survivor annuity under $ 19.11-2 computed as if the participant had retired on the date of death unless a court order or spousal agreement is on file in the Department waiving such entitlement or providing for some other computation, or unless the former spouse had been found missing and an election filed under the procedures of $ 19.11-4 waiving a survivor benefit for that person. Any assumed service authorized to be used under paragraph (b) of this section in computing the annuity for a surviving spouse may not be counted as "years of marriage' when determining whether the previous spouse qualifies as a "former spouse” under the definition in $19.2(k) or when computing the pro rata share under $19.2(s). A former spouse is entitled to an additional survivor annuity under $19.10–5 provided death occurs on or after the effective date of a spousal agreement providing for the additional annuity.

(b) Annuity for surviving spouse. If a participant who has at least 19 months of civilian service credit toward retirement under the System, excluding extra service credited for unhealthful post duty in accordance with section 816 of the Act, dies before separation from the Service, and is survived by a spouse as defined in $19.2(v) such survivor shall be entitled to an annuity equal to 55 percent of the annuity computed in accordance with $ 19.10–1 less any annuity payable to a former spouse under paragraph a. If the participant had less than three years of creditable civilian service at the time of death, the survivor annuity is computed on

the basis of the average salary for the are increased from the commencing entire period of such service. If, at time date of the annuity to each child by of death, the participant had less than the cumulative percentage of all cost20 years of creditable service, the annu- of-living increases that have occurred ity shall be computed on the assump- under 5 U.S.C. 8340 since October 31, tion that the participant has had 20 1969. years of service, but such additional (c) Recomputation of annuity for child service credit shall in no case exceed or children. If a surviving wife or husthe difference between the partici- band dies or the annuity of a child is pant's age on the date of death and age terminated, the annuities of any re65. A spouse is entitled to an additional maining children shall be recomputed survivor annuity under $19.10-5 pro- and paid as though such spouse or child vided death occurs on or after the ef- had not survived the participant. If the fective date of a spousal agreement annuity to a surviving child who has providing for the additional annuity. not been receiving an annuity is initi

(c) Annuity for a child or children. If a ated or resumed, the annuities of any participant described in paragraph (b) other children shall be recomputed and of this section is survived by a child or paid from that date as though the anchildren, each surviving child is enti- nuities to all currently eligible chiltled to an annuity as described in dren in the family were then being ini$ 19.11–7.

tiated. (d) Annuity changes. Annuities based on a death in service are subject to the

$ 19.11-8 Required elections between provisions of $ 19.11-5 governing com

survivor benefits. mencement, adjustment, termination (a) Bar against concurrent payment and resumption of annuities.

under this Act and Workers' Compensa

tion Act. Except as stated below, sur$ 19.11-7. Annuity payable to surviving vivor annuities and survivors' comchild or children.

pensation for work injuries under 5 (a) If a participant who has at least U.S.C. 8102 are not payable concur18 months of civilian service credit rently if both are based on the death of under the System dies in service, or if the same employee. A survivor entitled an annuitant who was a former partici- to both must elect which of the two pant dies, annuities are payable to a benefits he/she prefers. Should all eligisurviving child or children, as defined ble survivors of a deceased employee in $19.2(e) as follows:

elect to receive the compensation ben(1) When survived by spouse and child efit rather than the survivor annuity, or children. If a principal is survived by their rights to the latter are termia wife or husband and by a child or nated and, if the lump-sum credit has children, in addition to any other an- not been exhausted, a lump-sum paynuity, there shall be paid to or on be- ment will become due under $ 19.13. The half of each child an annuity equal to one exception to this rule occurs when the smallest of:

a widow or widower is being paid the (i) $900

balance of a scheduled compensation (ii) $2,700 divided by the number of award under 5 U.S.C. 8107 due the dechildren-adjusted under paragraph (b). ceased employee. If so, the widow or

(2) When survived by a child or children widower may receive the survivor anbut no spouse. If the principal is not nuity and compensation award concursurvived by a wife or husband, but by a rently. child or children, each surviving child (b) Election between survivor annuity shall be paid an an uity equal to the and social security benefits. Pursuant to smallest of:

42 U.S.C. 417 (a) and (e), survivors who (i) $1,080

are eligible for annuity which is based (ii) $3,240 divided by the number of in part on military service performed children-adjusted under paragraph (b) by a principal between September 16, of this section.

1940, and December 31, 1956, and also for (b) Adjusted rates. In order to reflect survivor benefits under the Social Secost-of-living increases, the amounts curity system, may elect to have the referred to in paragraphs (a)(1) and (2) military service credited toward the

Social Security benefit. In practice, the survivors should apply for both benefits, ask the Department and the Social Security Administration for statements showing the amount of each benefit, and then make their election of where to credit the military service. If Social Security benefits are elected, the rights of all survivors to a foreign service annuity are terminated.

$ 19.13-3. Payment after death of prin

cipal. If a participant or former participant dies and no claim for annuity is payable, the lump-sum credit is paid to surviving beneficiaries.

$ 19.12 Employment in a Government

agency. An annuitant who is reemployed by a Federal Government agency may not receive a combination of salary and annuity which exceeds his/her Foreign Service salary at the time of retirement. Refer to $ 19.9

4.

8 19.14 Waiver of annuity.

An individual entitled to be paid an annuity may, for personal reasons, decline to accept all or any part of the annuity. However, a principal may not waive the portion of his/her annuity authorized to be paid to a former spouse under $19.7 or $ 19.9 or to a beneficiary under $19.6. An annuity waiver shall be in writing and sent to the Department (PER/ER/RET). A waiver may be revoked in writing at any time. Payment of the annuity waived may not be made for the period during which the waiver was in effect.

$ 19.13 Lump-sum payment.

PART 20-BENEFITS FOR CERTAIN

FORMER SPOUSES

$ 19.13–1 Lump-sum credit.

“Lump-sum credit” is the compulsory and special contributions to a participant's or former participant's credit in the Fund for his/her first 35 years of service plus interest thereon computed from the midpoint of each service period and compounded at four percent annually to the date of separation or December 31, 1976, whichever is earlier, and after such date, for a participant who separates from the Service after completing at least one year of civilian service and before completing 5 years of such service, at the rate of three percent annually to the date of separation. Interest shall not be paid for a fractional part of a month in the total service or on compulsory and special contributions from the annuitant for recall service or other service performed after the date of separation which forms the basis for annuity.

Sec.
20.1 Definitions.
20.2 Funding.
20.3 Qualifications.
20.4 Retirement benefits.
20.5 Survivor benefits.
20.6 COLA.
20.7 Waiver.
20.8 Effect on other benefits.
20.9 Application procedure.

AUTHORITY: 22 U.S.C. 3901 et seq.

SOURCE: 53 FR 39457, Oct. 7, 1988, unless otherwise noted.

$ 19.13–2 Share payable to a former

spouse. A former spouse of a participant or annuitant is entitled to a prorata share of 50 percent of any lump-sum payment authorized to be paid to a former participant under this section who separated from the Service on or after February 15, 1981, unless otherwise directed in a court order or a spousal agreement.

8 20.1 Definitions.

As used in this part, unless otherwise specified, the following have the meaning indicated:

COLA means cost-of-living adjustment in annuity.

Creditable service or service means employment or other periods that are counted under sections 816, 817, or 854 in determining retirement benefits.

Disability annuitant means a participant in FSRDS or FSPS entitled to a disability annuity under section 808 of the Act or subchapter V, chapter 84, title 5 U.S.C., and a disability annuity means a Foreign Service annuity computed under those sections.

194-071 D-01--5

such Fund are authorized by section 821(a) of the Act.

$ 20.3 Qualifications.

To be eligible for retirement or survivor benefits under this part, a former spouse must

(a) Have been a former spouse on February 14, 1981;

(b) After becoming a former spouse, not have remarried before attaining age 55;

(c) In the case of any retirement benefit under $20.5; elect this benefit instead of any survivor annuity for which the former spouse may simultaneously be eligible under this or another retirement system for Government employees; and

(d) Submit an application to the Department of State by June 22, 1990, in accordance with 8 20.9 unless that date is extended as authorized by that section. The deadline for submission of an application for survivor benefits under $ 20.5 will be deemed to have been met if the former spouse submits an application for retirement benefits within the deadline.

FSRDS means the Foreign Service Retirement and Disability System established by subchapter I, chapter 8, of the Act.

FSPS means the Foreign Service Pension System established by subchapter II, chapter 8, of the Act.

Former spouse means a former wife or husband of a participant or former participant who was married to such participant for not less than 10 years during service of the participant which is creditable under chapter 8 of the Act with at least 5 years occurring while the employee was a member of the Foreign Service and who retired from the Foreign Service Retirement System.

Full annuity equals the annuity the former participant would be eligible to receive except for deductions made to provide survivor benefits or because of payment of a portion of the annuity to others.

Participant means a person who contributes to the Fund identified in $ 20.2. Such person may participate in either FSRDS or FSPS.

Principal means a participant or former participant whose service forms the basis for a benefit for a former spouse under this part.

Pro rata share, in the case of a former spouse of a participant or former participant, means the percentage obtained by dividing the number of months during which the former spouse was married to the participant during the creditable service of the participant by the total number of months of such creditable service. In the total period, 30 days constitutes a month and any period of less than 30 days is not counted. When making this calculation for a former spouse married to a participant during a period the participant earned extra service credit under section 817 of the Act, the number of months of such extra service credit earned during that period of the marriage shall be added to the total number of months of the marriage. $ 20.2 Funding.

Benefits under this part are paid from the Fund maintained by the Secretary of the Treasury pursuant to section 802 of the Act but are not authorized to be paid except to the extent provided therefor. Appropriations for

8 20.4 Retirement benefits.

(a) Type of benefits. (1) A former spouse who meets the qualification requirements of $20.3 is entitled to a share of any Foreign Service annuity (other than a disability annuity) or any supplemental annuity computed under section 806(a), 823 or 824 of the Act to which the principal is entitled under FSRDS and to any Foreign Service annuity (other than a disability annuity) or annuity supplement computed under section 824 or 855 of the Act of 5 U.S.C. 8415 to which the principal is entitled under FSPS.

(2) A former spouse of a disability annuitant is entitled to a share of benefits to which the annuitant would qualify under paragraph (a) of this section, he or she not been disabled based on the actual age and service of the annuitant.

(b) Share. The share of a participant's benefits to which a qualified former spouse is entitled is

(1) 50 percent of the benefits described in $20.4(a) if the former spouse was married to the participant throughout the latter's creditable service; or

(2) A pro rata share of 50 percent of such benefits if the former spouse was not married to the participant throughout such creditable service.

(c) Reduction of benefits. If retirement benefits of a principal are reduced because of reemployment, attainment of eligibility for Social Security benefits or for any other reason, the amount of the share payable to a former spouse is correspondingly reduced during the period of the reduction.

(d) Commencement, Termination and Suspension. (1) Entitlement to retirement benefits under this section (except for a former spouse of a disability annuitant) shall commence on the latter of

(i) The day the principal becomes entitled to benefits described in $ 20.4(a);

or

(ii) December 22, 1987.

(2) Entitlement to retirement benefits under this section for a former spouse of a disability annuitant shall commence on the latter of

(i) The date the principal would qualify for benefits (other than a disability annuity) described in $ 20.4(a) on the basis of the principal's actual age and service;

(ii) The date the disability annuity begins; or

(iii) December 22, 1987.

(3) Entitlement to retirement benefits under this section shall terminate or be suspended on the earlier of

(i) Last day of the month before the former spouse dies or remarries before attaining age 55;

(ii) Date benefits of the principal terminate or are suspended because of death, recall, reemployment, recovery from disability or for any other reason.

(4) Entitlement to benefits under this section shall be resumed for a former spouse, following their suspension, or the date they are resumed for the principal.

(1) 55 percent of the full annuity to which the principal was entitled on the commencement or recomputation date of the annuity in the case of a principal who dies while in receipt of a Foreign Service annuity computed under section 806, 808, 823, 824, or 855 of the Act of 5 U.S.C. 8415;

(2) 55 percent of the annuity to which the principal was entitled at death in the case of a principal who dies while in receipt of a Foreign Service annuity computed under 5 U.S.C. 8452;

(3) 55 percent of the full annuity to which the principal would have been entitled if he or she retired (or returned to retirement status) on the date of death computed-depending on the provision that would be used to compute an annuity for a surviving spouse of the principal-under section 806(a), 823, 824, or 855(b) of the Act of 5 U.S.C. 8415 and using the actual service of the principal, in the case of a principal who dies while in active service, including service on recall or reemployment while annuity is suspended or reduced; or,

(4) 55 percent of the full annuity computed under 5 U.S.C. 8413(b) that the principal could have elected to receive commencing on the date of death or, if later, commencing on the date the principal would have attained the minimum retirement age described in 5 U.S.C. 8412(h), in the case of a principal while entitled to a deferred annuity under 5 U.S.C. 8413(b), but before commencement of that annuity. A survivor annuity under this paragraph may not commence before the date the principal would have attained the minimum retirement age.

(b) Effect of Election of Alternate Form Annuity. If a principal elects an alternate form annuity under section 829 of the Act or 5 U.S.C. 8420a, survivor benefits for a former spouse under this section shall, nevertheless, be based on what the principal's annuity would have been had the principal not withdrawn retirement contributions in a lump sum.

(c) Reduction Because of Receipt of Other Survivor Benefits. If a former spouse is in receipt of a survivor annuity based on an election by the principal under section 806(f) or 2109 of the Act, the survivor benefits for the

$ 20.5 Survivor benefits.

(a) Type of benefits. A former spouse who meets the eligibility requirements of $20.3 is entitled to survivor benefits equal to one of the following; whichever is applicable:

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