SBP Deemed Election: How a Former Spouse Protects Survivor Benefit Plan Coverage After Military Divorce

An SBP deemed election is how a former military spouse puts court-ordered Survivor Benefit Plan coverage in place when the service member does not make the election. The former spouse sends DFAS a written request with the court order. DFAS states the request must be submitted within one year of that order. Coverage is then entered even without the member's own election.

Most people facing this process are holding a California judgment of dissolution that says they are to receive survivor coverage. They have no way of knowing whether anyone has told the military pay system about it. Some are former spouses of a Navy or Marine Corps retiree in San Diego County. Others finished a divorce in Orange County or Los Angeles County years ago and only recently learned the coverage may never have been recorded. The worry is usually the same. A sentence in a court order is supposed to protect income after a former spouse dies, and the reader cannot tell whether it does. This guide walks through what that sentence does and does not do, the documents involved, and the federal deadline that controls the whole process.

The process has five steps. The court costs are usually small, but the deadline is not flexible. The work takes place inside the one-year period that begins when the qualifying order is issued.

Background: Key Facts About SBP and Divorce

What SBP is. The Survivor Benefit Plan (SBP) is the federal program created by 10 U.S.C. § 1447 and the sections that follow it. After a retired service member dies, it pays a monthly annuity to a designated beneficiary. The statute treats a "surviving spouse" and a "former spouse" as separate categories. Under 10 U.S.C. § 1447(10), a former spouse is "the surviving former husband or wife of a person who is eligible to participate in the Plan."

What divorce does to coverage. When a divorce becomes final, a person covered as the member's spouse is no longer a spouse. Spouse coverage does not turn into former spouse coverage on its own. "Former spouse coverage" is a separate election under 10 U.S.C. § 1448(b). Protection is restored only if that election is made, or is treated as made. The Survivor Benefit Plan in divorce has more background.

The agency. The Defense Finance and Accounting Service (DFAS) is the federal agency that pays military retired pay and SBP annuities. Military retired pay is the monthly pay a service member receives after retirement.

The state court's role. California courts can order survivor coverage. Family Code section 2610 directs the court to make the orders needed to ensure each party receives a full community share of a retirement plan, "including all survivor and death benefits." It also allows the court to order a party to elect a survivor benefit annuity for the other party. The court may not order a plan to provide increased benefits determined on the basis of actuarial value. A court order alone, however, does not enroll anyone in SBP. A separate election, or a deemed election, has to reach DFAS.

Documents to have in hand: - The judgment of dissolution (the divorce decree). - Any court order or marital settlement agreement that addresses SBP.

This page covers the deemed election, the route a former spouse can start on their own under 10 U.S.C. § 1450(f)(3). The member's own voluntary election of former spouse coverage is a related but separate process.

Step 1: Confirm the Court Order Requires Former Spouse SBP Coverage

Under 10 U.S.C. § 1450(f)(3), a deemed election is available only when the member is required to elect former spouse coverage. That requirement can come from either of two sources: - a court order made "incident to a proceeding of divorce, dissolution, or annulment," which means as part of the divorce case itself; or - a written agreement that a court order incorporates, ratifies or approves.

The order must address SBP directly. The order has to say that the member must elect former spouse SBP coverage. A general property division that never mentions SBP does not meet this requirement.

Retired pay and SBP are separate provisions. Many judgments contain a provision dividing retired pay. That provision governs a share of monthly retired pay while the member is alive. An SBP provision governs an annuity after the member's death. A judgment may contain one, both or neither. Each has to be written on its own terms. Dividing military retired pay covers the retired pay side.

California orders qualify. A judgment from the Superior Court of California, County of San Diego, or from any other California superior court, can include an SBP former spouse requirement.

If the order is silent. When the judgment and settlement agreement say nothing about SBP, the deemed election is not available. The remaining route at that point is a return to the family court.

Checklist: Find the exact sentence in the decree or agreement that addresses SBP before moving to Step 2.

Step 2: Understand the One-Year Deadline

A deemed election means DFAS treats the former spouse election as made even though the member never made it. Under 10 U.S.C. § 1450(f)(3), it applies when a member who is required to elect former spouse coverage "fails or refuses to make such an election." The member is then "deemed to have made such an election" once the Secretary concerned receives two things: - a written request from the former spouse; and - a copy of the court order, "regular on its face," that requires the election or approves the agreement, or a clerk's statement that the agreement was filed with the court.

In practice, DFAS is the office that receives the request.

When the clock starts. DFAS's published guidance states the request "must be submitted within one year of the order requiring former spouse SBP coverage." The clock runs from the date of that order. It does not run from the date DFAS receives anything, and it does not run from the date the former spouse learns of the requirement.

The member's inaction does not extend the deadline. If the member never acts, the deadline stays the same. The deemed election is the former spouse's own tool, and the timing rests with the former spouse.

If the year passes. Suppose neither a deemed election request nor a voluntary election by the member is on file when the year ends. Former spouse coverage can then no longer be put in place through this route. The practical result is that no SBP annuity is paid to the former spouse when the member dies, whatever the court order says, unless a remedy is obtained some other way through the courts.

Checklist: Write down the date the qualifying order was issued and the date one year later before moving to Step 3.

Step 3: Gather the Required Documents

This is often the step where a reader realizes how much depends on paperwork that has been sitting in a drawer since the divorce. DFAS's deemed election page lists three items:

• A copy of the court order requiring former spouse SBP coverage. The statute calls for a copy "regular on its face." Many people get a certified copy from the clerk of the superior court that entered the judgment. A certified copy is one that carries the clerk's stamp confirming it matches the court record.
• A copy of the divorce decree.
• The completed DFAS deemed election request form, which is the former spouse's written request. It identifies the member, the former spouse and the court order. The form is available from DFAS.

Identifying information to have ready: - The former spouse's full legal name as it appears in the order, Social Security number and contact information. - The member's full name, Social Security number or DoD ID number, and branch of service.

DD Form 2293 is a different form. DD Form 2293 is the DFAS Application for Former Spouse Payments from Retired Pay. It asks DFAS to pay a court-ordered share of retired pay directly to the former spouse. It does not request SBP coverage. Many former spouses file both, but they are separate requests. The DD Form 2293 process is covered on its own page.

Checklist: Assemble everything before submitting. An incomplete package can delay processing, and a request that is not proper may not count toward the one-year window.

Step 4: Submit the Deemed Election Request to DFAS

DFAS handles deemed election requests through its Garnishment Law Directorate. Its deemed election page describes three ways to submit: - mail; - fax; or - online through askDFAS.

DFAS also says the request "can be made prior to the member's retirement, as long as the request is made within one year of when the order was issued."

Keeping a dated record. Because the deadline turns on timing, many senders use certified mail with a return receipt. The receipt creates a dated record of delivery. Fax confirmations and online submission records serve a similar purpose.

What DFAS does next. DFAS states that if a former spouse submits a proper request within the year, "the former spouse SBP coverage will be entered on the member's account, even if the member has not made a former spouse election." The statute also requires the Secretary concerned to notify a previously designated former spouse of any later change of election under 10 U.S.C. § 1450(f)(1)(B).

When the annuity is paid. Once coverage is in place, the annuity is paid effective as of the first day after the member's death, under 10 U.S.C. § 1450(a).

Checklist: Keep copies of every page submitted along with proof of delivery. If no confirmation arrives within a reasonable time, a written follow-up to DFAS creates a further record.

Step 5: Understand What Happens After Coverage Is Established

The cost. Former spouse coverage is paid for through a reduction in the member's retired pay. The amount depends on the coverage level chosen. How that cost is shared between the parties is something the judgment can address.

The base amount. The annuity is calculated from a "base amount," and 10 U.S.C. § 1447(6) defines it differently for different kinds of annuity: - Standard annuity. For a person who dies after becoming entitled to retired pay, the base amount is the monthly retired pay the person was entitled to when first eligible, or later became entitled to by advancement on the retired list, active duty, or transfer to the permanent disability retired list. - Reserve-component annuity. For a person who died before age 60 and before becoming eligible for reserve-component retired pay, the base amount is the retired pay the person would have been eligible for, figured as of the designation made. - Reduced amount. A member may designate a lower base amount of not less than $300, within the timing limits the statute sets.

Which definition applies depends on the kind of annuity involved.

Remarriage. Remarriage by a former spouse before a certain age can suspend the annuity. Coverage may be restored if that later marriage ends. The details depend on the facts.

VA dependency and indemnity compensation (DIC). DIC is a separate VA survivor payment. When a survivor qualifies for both DIC and an SBP annuity, the two interact and the SBP payment can be affected.

Other benefits are separate. SBP is separate from any division of retired pay. A former spouse may have both, either or neither, depending on the order. SBP coverage also does not decide TRICARE eligibility, which has its own rules. Benefits after military divorce describes those programs side by side.

Changing the election later. Once a court-required election is in place, 10 U.S.C. § 1450(f)(2) bars the member from changing it unless certain conditions are met: - For a court-ordered election, the member must give the Secretary concerned a certified copy of a modifying court order that permits the change, and certify that the order is valid and in effect. - For an agreement no court has approved, the member needs a statement signed by the former spouse agreeing to the change.

Timeline: What the One-Year Window Actually Means in Practice

A year sounds long. In practice it fills up with waiting for certified copies, tracking down a former spouse's identifying information, and sorting out unclear language in the order. One way the year can be laid out:

DFAS's guidance describes no grace period and no extension for a late request.

Timing is easier to manage while the divorce is still pending, whether in San Diego County or another California court. Putting the SBP provision into the judgment or settlement agreement before entry avoids the problem. Adding it after judgment generally requires asking the court to modify the judgment. The broader military divorce process shows where this fits.

When the Process Gets Complicated

The order is silent on SBP

No deemed election is possible. The options that remain run through the family court. One is a request to modify the judgment. Another, if the member was obligated to elect coverage and did not, is a claim against the member under the agreement.

The member already retired with spouse coverage

DFAS states a member may elect former spouse coverage for a former spouse who was originally the spouse beneficiary, provided the divorce came after the member became eligible for retired pay. The deemed election follows the same steps. Because the member is already receiving retired pay, the timing usually feels more pressing.

The member has not yet retired

SBP elections are tied to retirement. Even so, DFAS states the deemed election window runs from the date of the court order, not the retirement date, and the request may be made before retirement.

The member dies before the request is processed

This situation is legally complex and time-sensitive. Whether coverage can still be put in place depends on the dates and documents involved. It is a question for California family law counsel familiar with federal SBP rules.

The SBP language is ambiguous

If the order uses nonstandard wording, DFAS may decline to enter coverage. A clarifying order from the superior court may then be needed, and the time it takes comes out of the same one-year window.

The Uniformed Services Former Spouses' Protection Act (USFSPA) is the federal law that lets state courts treat military retired pay as divisible property. It does not itself create SBP coverage. SBP rights come from a court order and the SBP election rules.

Questions About Making a Court-Ordered SBP Provision Count

An SBP provision protects a former spouse only if the order's wording and the DFAS submission line up, and only if both happen inside the one-year window. A consultation is a place to raise those questions, including the date the qualifying order was issued, whether the member has retired, and whether a clarifying or modifying order may be needed. Military Family Law Advocates practices California family law only.

To talk with the firm about SBP deemed elections, call Military Family Law Advocates at 888-771-0460 for a confidential consultation.

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