Yes. Lump-sum amounts payable on the death of a Federal employee or annuitant may be designated to go to any individual. If an employee or annuitant wishes to designate their same sex domestic partners to receive a lump sum, it is imperative that they do so affirmatively by making an election on an SF 2808.
Lump-sum benefits are paid in accordance with the statutory order of precedence under 5 U.S.C. § 8342(c) (CSRS) (
http://www.gpo.gov/fdsys/pkg/USCODE-2010-title5/html/USCODE-2010-title5-partIII-subpartG-chap83-subchapIII-sec8342.htm) or 5 U.S.C. § 8424(d) (FERS) (
http://www.gpo.gov/fdsys/pkg/USCODE-2010-title5/html/USCODE-2010-title5-partIII-subpartG-chap84-subchapII-sec8424.htm). Same-sex domestic partners are not among those listed in the statutory order of preference. Further, a same sex spouse cannot receive lump-sum benefits as a “widow” or “widower” under the statutory order of precedence (i.e., the second order of precedence under 5 U.S.C. §§ 8342(d) and 8424(d)) as a result of DOMA. Therefore, in order for same-sex domestic partners or spouses to receive lump-sum benefits, employees or annuitants must designate their same-sex domestic partners or spouses under the first order of precedence (through a designated beneficiary) using SF 2808, Designation of Beneficiary, Civil Service Retirement System (
http://www.opm.gov/forms/pdf_fill/sf2808.pdf), and SF 3102, Designation of Beneficiary, Federal Employees Retirement System (
http://www.opm.gov/Forms/pdf_fill/SF3102.pdf).
FURTHER INFORMATION:
The Same-Sex Domestic Partner FAQs were developed to answer questions about the benefits available to the same-sex domestic partners or spouses of Federal employees, under title 5, United States Code. Please note that information regarding eligibility for benefits can change quickly, and you should consult the web pages of the individual benefits programs for the most current information (see list of links in FAQ 24). In addition, please note that these FAQs do not address benefits available to same-sex domestic partners outside of Title 5, such as travel and relocation benefits, which are administered by the General Services Administration. (See
http://www.gsa.gov/graphics/ogp/FTRBulletin1107.pdf.)
Can Federal employees obtain spousal benefits provided by Title 5 for their same sex spouses if they are legally married under state law?
Answer
No. At this time, the Defense of Marriage Act (DOMA), codified at 1 U.S.C. § 7 and 28 U.S.C. § 1738C, defines the term “marriage” as found in Federal benefits statutes to mean “a legal union between one man and one woman as husband and wife” and the term “spouse” to mean “a person of the opposite sex who is a husband or a wife.” For those benefits of federal employment that are limited to spouses, DOMA thus prohibits coverage of same-sex domestic partners, even if legally married under state law. President Obama and the Attorney General have announced that the current Administration will no longer defend DOMA in court because of the Administration’s view that DOMA is unconstitutional. Nonetheless, until Congress repeals DOMA or there is a final judicial ruling that strikes it down, the Administration continues to enforce DOMA because it is the law. See
http://www.justice.gov/opa/pr/2011/February/11-ag-222.html.
Can Federal employees obtain benefits for their same-sex domestic partners and the children of their same-sex domestic partners?
Answer
Yes, with respect to many benefits. President Obama issued a memorandum on June 2, 2010, requesting all Federal agencies to consider extending benefits currently available to employees’ opposite-sex spouses to employees’ same-sex domestic partners, as long as such coverage could be extended consistent with law. See the Presidential Memorandum "Extension of Benefits to Same-Sex Domestic Partners of Federal Employees," at
http://www.whitehouse.gov/the-press-office/presidential-memorandum-extension-benefits-same-sex-domestic-partners-federal-emplo. Agencies have reviewed and are continuing to review their programs and proposing or implementing changes to their programs in response to the President’s memorandum, and a number of benefits are now available to same-sex domestic partners of Federal employees that previously were not as described below, under specific benefits.
What is the definition of a domestic partner?
Answer
For purposes of ensuring consistent implementation of the President’s memorandum, a “domestic partner” is defined in OPM regulations (e.g. 5 C.F.R. § 875.213) as a person in a domestic partnership with an employee or annuitant of the same sex.
The term “domestic partnership” is defined as a committed relationship between two adults, of the same sex, in which the partners—
(1) are each other’s sole domestic partner and intend to remain so indefinitely;
(2) maintain a common residence, and intend to continue to do so (or would maintain a common residence but for an assignment abroad or other employment-related, financial, or similar obstacle);
(3) are at least 18 years of age and mentally competent to consent to contract;
(4) share responsibility for a significant measure of each other’s financial obligations;
(5) are not married or joined in a civil union to anyone else
(6) are not the domestic partner of anyone else;
(7) are not related in a way that, if they were of opposite sex, would prohibit legal marriage in the U.S. jurisdiction in which the partnership was formed;
(8) are willing to certify, if required by the agency, that they understand that willful falsification of any documentation required to establish that an individual is in a domestic partnership may lead to disciplinary action and the recovery of the cost of benefits received related to such falsification, as well as constitute a criminal violation under 18 U.S.C. § 1001, and that the method for securing such certification, if required, shall be determined by the agency; and
(9) are willing promptly to disclose, if required by the agency, any dissolution or material change in the status of the domestic partnership.
Do I need to provide documentation to establish that I am in a domestic partnership?
Answer
Generally, agencies may choose whether or not to require employees to provide documentation (such as a sworn affidavit) to establish the existence of a domestic partnership with respect to specific benefits. In determining whether to require documentation, however, agencies must consider whether a similar requirement is imposed upon opposite-sex spouses, consistent with the President’s intention that same-sex domestic partners be treated in the same manner as opposite-sex spouses for purposes of these benefits, to the extent permitted by law.
With respect to certain benefits, however, documentation is required by regulation. For example, 5 CFR § 875.213 states that, for the purpose of the Federal Long Term Care Insurance Program, and as prescribed by OPM, domestic partners “will be required to provide documentation to demonstrate that you meet these requirements.”
Does the fact that I am legally married in a state that recognizes same-sex marriage affect the determination of whether I am in a domestic partnership?
Answer
No. The existence of a domestic partnership does not depend upon marital status. It is determined solely on the basis of the criteria set forth above, in A. 4.