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March 30, 2023 Military

"Help - I Missed the Boat!" The Survivor Benefit Plan Open Season

By: Kris Hilscher

One of the time limits in the military divorce process is the one-year deadline for the Survivor Benefit Plan, or SBP.  Since this survivor annuity pays 55% of the selected base amount to the surviving spouse/former spouse, adjusted annually for inflation, it can be a significant measure of protection if the SM/retiree dies before the beneficiary.  But the SBP election must be registered with the retired pay center within one year of the divorce.

The one-year deadline is sometimes missed because the parties and their attorneys are unaware of this SBP time limit.  If there is no timely election of SBP, then it’s lost – a big problem for the retiree’s former spouse in a military divorce case, since payment of the military pension stops when the retiree dies, thus terminating the former spouse’s share of the retired pay. 

A new law provides a possible solution to the "missed SBP" issue; last December, Congress enacted a statute which is a lifeline for obtaining SBP when the servicemember or retiree has not enrolled a spouse or former spouse in the program. The statute is called the Survivor Benefit Plan Open Season and it's contained in the 2023 National Defense Authorization Act (NDAA). That's also known as Public Law 117-263; the specific program is at Section 643.  We’re “in the window” right now; the "Open Season" for the SM/retiree to apply ends January 1, 2024.

Since this will have use to a limited number of readers, I won’t put the details here.  Just write me at [email protected], and I’ll send you the statute, the Internet instruction notice on the SBP Open Season, and the Letter of Intent, along with an example of a letter which I’ve used in cases where the former spouse says, “Help - I’ve missed the boat!”

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Kris Hilscher

Esq., Raleigh, NC

Mr. Hilscher regularly serves as an co-counsel on military divorce cases and military pension division, assisting attorneys nationwide in drafting military pension division orders and on military divorce issues.  Mr. Hilscher is the co-chair of the military committee of the ABA family law section, and an appointed member of the ABA Standing Committee on Legal Assistance for Military Personnel. Mr. Hilscher is a board-certified specialist in family law, practicing in Raleigh, NC.