Tiffany A. Russell-Survivor Benefit Plan Annuity

B-261962 Feb 16, 1996 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Widow of deceased member is proper Survivor Benefit Plan annuitant rather than child adopted during prior marriage because under 10 U.S.C. Maximum spouse and child coverage was established. The marriage was dissolved by divorce and the divorce decree did not mention SBP coverage. Deductions were not stopped for spousal SBP coverage. The spousal deductions were stopped and a refund was made of the costs collected from June 1. DFAS was unaware of Sergeant Russell's marriage to Carolyn until receipt of her claim. DFAS found that Carolyn Russell was the proper SBP annuitant. Our Claims Group agreed with DFAS that Carolyn Russell was the proper annuitant because under 10 U.S.C. Willie Russell argues she was not advised that she needed to concur in Sergeant Russell's election for child only coverage in July 1988 and was not aware of the existence of the SBP coverage at the time of the divorce because Sergeant Russell indicated he had no insurance coverage. View Decision Matter of: Tiffany A. Russell-Survivor Benefit Plan Annuity File: B-261962 Date: February 16, 1996 Widow of deceased member is proper Survivor Benefit Plan annuitant rather than child adopted during prior marriage because under 10 U.S.C. Sec. 1450(a), widow has superior claim over dependent children. DECISION Ms. Willie M. Russell, on behalf of Tiffany A. Russell, a minor, appeals the settlement of our Claims Group which found Tiffany, as the adopted daughter of Staff Sergeant David S. Russell III, USAF (Retired) (Deceased) not entitled to a Survivor Benefit Plan (SBP) annuity. Sergeant Russell married Willie M. Russell on August 23, 1969, and they adopted Tiffany at a later date. Sergeant Russell retired on July 1, 1988, at which time he elected SBP child only coverage. However, because an election of less than full spousal coverage required concurrence of the member's spouse and Willie Russell did not sign the spousal notification, maximum spouse and child coverage was established. On February 27, 1989, the marriage was dissolved by divorce and the divorce decree did not mention SBP coverage. On August 26, 1989, Sergeant Russell married Carolyn F. Russell. Sergeant Russell died on February 1, 1994. On July 13, 1989, the Defense Finance and Accounting Service received a copy of the divorce decree and complied with the provisions of the decree regarding the payment of the portion of Sergeant Russell's retired pay awarded to Willie Russell and the award of child support. However, at that time, deductions were not stopped for spousal SBP coverage. On July 3, 1990, Sergeant Russell wrote to DFAS requesting that the SBP deductions be stopped. The spousal deductions were stopped and a refund was made of the costs collected from June 1, 1989, through July 31, 1990. The cost of child only coverage continued to be deducted. After Sergeant Russell's death, DFAS received claims for the SBP annuity from Carolyn Russell and from Willie Russell on behalf of Tiffany Russell. DFAS was unaware of Sergeant Russell's marriage to Carolyn until receipt of her claim. She subsequently submitted a copy of their marriage certificate showing that the marriage had lasted more than 1 year prior to his death. DFAS found that Carolyn Russell was the proper SBP annuitant, established an annuity for her on April 22, 1994, and collected the delinquent SBP costs of $1,892.27 for September 1, 1990, to February 1, 1994, from the annuity. DFAS submitted the matter to our Office in view of Willie Russell's claim on behalf of Tiffany, and by settlement dated December 8, 1994, our Claims Group agreed with DFAS that Carolyn Russell was the proper annuitant because under 10 U.S.C. Sec. 1450(a), a surviving spouse has a superior claim to the annuity over surviving dependent children. In her appeal, Willie Russell argues she was not advised that she needed to concur in Sergeant Russell's election for child only coverage in July 1988 and was not aware of the existence of the SBP coverage at the time of the divorce because Sergeant Russell indicated he had no insurance coverage. If she had been aware of the coverage, she states, she would have asked the divorce court to order former spouse and child coverage for herself and Tiffany. She also argues that by his actions in July 1990, requesting that spouse coverage be stopped because of the divorce, Sergeant Russell was showing his intent to revert to child only coverage for Tiffany. DFAS records show that a letter was sent to Sergeant Russell at the address listed on the election form in August 1988, regarding the need for spousal concurrence for his election of child only coverage to be effective. No reply was received to this letter, resulting in maximum spouse and child coverage.