§1447. Definitions

In this subchapter:

(1) The term "Plan" means the Survivor Benefit Plan established by this subchapter.

(2) The term "base amount" means-

(A) in the case of a person who dies after becoming entitled to retired pay, the amount of monthly retired pay (determined without regard to any reduction under section 1409(b)(2) of this title) to which the person-

(i) was entitled when he became eligible for that pay; or

(ii) later became entitled by being advanced on the retired list, performing active duty, or being transferred from the temporary disability retired list to the permanent disability retired list;

(B) in the case of a person who would have become eligible for reserve-component retired pay but for the fact that he died before becoming 60 years of age, the amount of monthly retired pay for which the person would have been eligible-

(i) if he had been 60 years of age on the date of his death, for purposes of an annuity to become effective on the day after his death in accordance with a designation made under section 1448(e) of this title; or

(ii) upon becoming 60 years of age (if he had lived to that age), for purposes of an annuity to become effective on the 60th anniversary of his birth in accordance with a designation made under section 1448(e) of this title; or

(C) any amount which is less than the amount otherwise applicable under clause (A) or (B) with respect to an annuity provided under the Plan but which is not less than $300 and which is designated by the person (with the concurrence of the person's spouse, if required under section 1448(a)(3) of this title) providing the annuity on or before (i) the first day for which he becomes eligible for retired pay, in the case of a person providing a standard annuity, or (ii) the end of the 90-day period beginning on the date on which he receives the notification required by section 12731(d) of this title that he has completed the years of service required for eligibility for reserve-component retired pay, in the case of a person providing a reserve-component annuity.

(3) The term "widow" means the surviving wife of a person who, if not married to the person at the time he became eligible for retired pay-

(A) was married to him for at least one year immediately before his death; or

(B) is the mother of issue by that marriage.

(4) The term "widower" means the surviving husband of a person who, if not married to the person at the time she became eligible for retired pay-

(A) was married to her for at least one year immediately before her death; or

(B) is the father of issue by that marriage.

(5) The term "dependent child" means a person who is-

(A) unmarried;

(B) (i) under 18 years of age; (ii) at least 18, but under 22, years of age and pursuing a full-time course of study or training in a high school, trade school, technical or vocational institute, junior college, college, university, or comparable recognized educational institution; or (iii) incapable of supporting himself because of a mental or physical incapacity existing before his eighteenth birthday or incurred on or after that birthday, but before his twenty-second birthday, while pursuing such a full-time course of study or training; and

(C) the child of a person to whom the Plan applies, including (i) an adopted child, and (ii) a stepchild, foster child, or recognized natural child who lived with that person in a regular parent-child relationship.

For the purpose of this paragraph, a child whose twenty-second birthday occurs before July 1 or after August 31 of a calendar year, and while he is regularly pursuing such a course of study or training, is considered to have become 22 years of age on the first day of July after that birthday. A child who is a student is considered not to have ceased to be a student during an interim between school years if the interim is not more than 150 days and if he shows to the satisfaction of the Secretary of Defense that he has a bona fide intention of continuing to pursue a course of study or training in the same or a different school during the school semester (or other period into which the school year is divided) immediately after the interim. Under this paragraph, a foster child, to qualify as the dependent child of a person to whom the Plan applies, must, at the time of the death of that person, also reside with, and receive over one-half of his support from, that person, and not be cared for under a social agency contract. The temporary absence of a foster child from the residence of that person, while he is a student as described in this paragraph, will not be considered to affect the residence of such a foster child.

(6) The term "former spouse" means the surviving former husband or wife of a person who is eligible to participate in the Plan.

(7) The term "court" has the meaning given that term by section 1408(a)(1) of this title.

(8) The term "court order" means a court's final decree of divorce, dissolution, or annulment or a court ordered, ratified, or approved property settlement incident to such a decree (including a final decree modifying the terms of a previously issued decree of divorce, dissolution, or annulment or of a court ordered, ratified, or approved property settlement agreement incident to such previously issued decree).

(9) The term "final decree" means a decree from which no appeal may be taken or from which no appeal has been taken within the time allowed for the taking of such appeals under the laws applicable to such appeals, or a decree from which timely appeal has been taken and such appeal has been finally decided under the laws applicable to such appeals.

(10) The term "regular on its face", when used in connection with a court order, means a court order that meets the conditions prescribed in section 1408(b)(2) of this title.

(11) The term "retired pay" includes retainer pay paid under section 6330 of this title.

(12) The term "standard annuity" means an annuity provided by virtue of eligibility under section 1448(a)(1)(A) of this title.

(13) The term "reserve-component annuity" means an annuity provided by virtue of eligibility under section 1448(a)(1)(B) of this title.

(14) The term "reserve-component retired pay" means retired pay under chapter 1223 of this title (or under chapter 67 of this title as in effect before the effective date of the Reserve Officer Personnel Management Act).

(Added Pub. L. 92–425, §1(3), Sept. 21, 1972, 86 Stat. 706 ; amended Pub. L. 94–496, §1(1), Oct. 14, 1976, 90 Stat. 2375 ; Pub. L. 95–397, title II, §201, Sept. 30, 1978, 92 Stat. 843 ; Pub. L. 96–402, §2, Oct. 9, 1980, 94 Stat. 1705 ; Pub. L. 97–252, title X, §1003(a), Sept. 8, 1982, 96 Stat. 735 ; Pub. L. 98–94, title IX, §941(c)(1), Sept. 24, 1983, 97 Stat. 653 ; Pub. L. 99–145, title VII, §§719(1), (2), 721(b), Nov. 8, 1985, 99 Stat. 675 , 676; Pub. L. 99–348, title III, §301(a)(1), July 1, 1986, 100 Stat. 702 ; Pub. L. 99–661, div. A, title XIII, §1343(a)(8)(A), Nov. 14, 1986, 100 Stat. 3992 ; Pub. L. 100–180, div. A, title XII, §1231(17), Dec. 4, 1987, 101 Stat. 1161 ; Pub. L. 101–189, div. A, title XIV, §1407(a)(1)–(3), Nov. 29, 1989, 103 Stat. 1588 ; Pub. L. 101–510, div. A, title XIV, §1484(l)(4)(C)(i), Nov. 5, 1990, 104 Stat. 1720 ; Pub. L. 103–337, div. A, title XVI, §1671(d), Oct. 5, 1994, 108 Stat. 3014 .)

References in Text

Chapter 67 of this title as in effect before the effective date of the Reserve Officer Personnel Management Act, referred to in par. (14), means chapter 67 (§1331 et seq.) of this title prior to its transfer to part II of subtitle E of this title, its renumbering as chapter 1223, and its general revision by section 1662(j)(1) of Pub. L. 103–337. A new chapter 67 (§1331) of this title was added by section 1662(j)(7) of Pub. L. 103–337. For effective date of the Reserve Officer Personnel Management Act (Pub. L. 103–337, title XVI), see section 1691 of Pub. L. 103–337, set out as an Effective Date note under section 10001 of this title.

Amendments

1994-Par. (2)(C). Pub. L. 103–337, §1671(d)(2), substituted "12731(d)" for "1331(d)".

Par. (14). Pub. L. 103–337, §1671(d)(1), substituted "chapter 1223 of this title (or under chapter 67 of this title as in effect before the effective date of the Reserve Officer Personnel Management Act)" for "chapter 67 of this title".

1990-Par. (5). Pub. L. 101–510 made technical correction to directory language of Pub. L. 101–189, §1407(a)(1)(A), see 1989 Amendment note below.

1989-Par. (2)(B). Pub. L. 101–189, §1407(a)(2), substituted "reserve-component retired pay" for "retired pay under chapter 67 of this title".

Par. (2)(C)(i). Pub. L. 101–189, §1407(a)(3), struck out "or retainer" after "eligible for retired".

Par. (2)(C)(ii). Pub. L. 101–189, §1407(a)(2), substituted "reserve-component retired pay" for "retired pay under chapter 67 of this title".

Pars. (3), (4). Pub. L. 101–189, §1407(a)(3), struck out "or retainer" after "eligible for retired".

Par. (5). Pub. L. 101–189, §1407(a)(1)(A), as amended by Pub. L. 101–510, substituted "this paragraph" for "this clause" in three places in concluding provisions.

Par. (11). Pub. L. 101–189, §1407(a)(1)(B), inserted "paid under section 6330 of this title" after "retainer pay".

Par. (14). Pub. L. 101–189, §1407(a)(1)(C), added par. (14).

1987-Pub. L. 100–180 inserted "The term" after each par. designation and revised first word in quotes in pars. (2) to (13) to make initial letter of such word lowercase.

1986-Par. (2)(A). Pub. L. 99–661 substituted "retired pay" for "retired or retainer pay" in two places in provisions preceding cl. (i).

Pub. L. 99–348 inserted "(determined without regard to any reduction under section 1409(b)(2) of this title)".

1985-Par. (2)(C). Pub. L. 99–145, §721(b), inserted "(with the concurrence of the person's spouse, if required under section 1448(a)(3) of this title)" after "designated by the person".

Par. (2)(C)(i). Pub. L. 99–145, §719(2)(A), substituted "a standard annuity" for "an annuity by virtue of eligibility under section 1448(a)(1)(A) of this title".

Par. (2)(C)(ii). Pub. L. 99–145, §719(2)(B), substituted "a reserve-component annuity" for "an annuity by virtue of eligibility under section 1448(a)(1)(B) of this title".

Pars. (11) to (13). Pub. L. 99–145, §719(1), added pars. (11) to (13).

1983-Par. (8). Pub. L. 98–94 substituted "or annulment" for "annulment, or legal separation," in two places.

1982-Pars. (6) to (10). Pub. L. 97–252 added pars. (6) to (10).

1980-Par. (2). Pub. L. 96–402 inserted in subpar. (C) "but which is not less than $300" after "under the Plan", substituted a period at end of subpar. (C) for ", but not less than $300;", and struck out following subpar. (C) "as increased from time to time under section 1401a of this title."

1978-Par. (2). Pub. L. 95–397 inserted "in the case of a person who dies after becoming entitled to retired or retainer pay" before "the amount" and substituted "pay to which the person" for "pay to which a person" in subpar. (A), substituted "in the case of a person who would have become eligible for retired pay under chapter 67 of this title but for the fact that he died before becoming 60 years of age, the amount of monthly retired pay for which the person would have been eligible-" for "any amount less than that described by clause (A) designated by that person on or before the first day for which he became eligible for retired or retainer pay, but not less than $300" in subpar. (B), and added subpars. (B)(i), (ii) and (C).

1976-Pars. (3)(A), (4)(A). Pub. L. 94–496 substituted "one year" for "two years".

Effective Date of 1994 Amendment

Amendment by Pub. L. 103–337 effective Dec. 1, 1994, except as otherwise provided, see section 1691 of Pub. L. 103–337, set out as an Effective Date note under section 10001 of this title.

Effective Date of 1990 Amendment

Section 1484(l)(4)(C) of Pub. L. 101–510 provided that the amendment made by that section is effective Nov. 29, 1989.

Effective Date of 1985 Amendment

Section 731 of title VII of Pub. L. 99–145 provided that:

"(a) Effective Date.-Except as otherwise provided in this title, the amendments made by this title [see Short Title of 1985 Amendment note below] shall take effect on the first day of the first month beginning more than 90 days after the date of the enactment of this Act [Nov. 8, 1985].

"(b) Prospective Benefits Only.-No benefit shall accrue to any person by reason of the enactment of this title for any period before the effective date under subsection (a)."

Effective Date of 1982 Amendment; Transition Provisions

Amendment by Pub. L. 97–252 effective Feb. 1, 1983, and applicable to persons becoming eligible to participate in Survivor Benefit Plan provided for in this subchapter before, on, or after Feb. 1, 1983, see section 1006 of Pub. L. 97–252, set out as an Effective Date; Transition Provisions note under section 1408 of this title.

Effective Date of 1980 Amendment

Section 7 of Pub. L. 96–402 provided that: "The amendments made by sections 2, 3, and 4 of this Act [amending this section and sections 1451 and 1452 of this title] and the provisions of section 5 of this Act [set out as a note under section 1448 of this title] shall be effective on the first day of the second calendar month following the month in which this Act is enacted [October 1980] and shall apply to annuities payable by virtue of such amendments and provisions for months beginning on or after such date. No benefits shall accrue to any person by virtue of the enactment of this Act [Pub. L. 96–402] for any period before the date of the enactment of this Act [Oct. 9, 1980]."

Effective Date of 1978 Amendment

Section 210 of title II of Pub. L. 95–397 provided that:

"(a) Except as provided in subsection (b), the provisions of this title [amending this section and sections 1331 [now 12731] and 1448 to 1452 of this title and enacting provisions set out as notes under this section and section 1448 of this title] and the amendments made by this title shall take effect on October 1, 1978, or on the date of the enactment of this Act [Sept. 30, 1978], whichever is later, and shall apply to annuities payable by virtue of such amendments for months beginning on or after such date.

"(b) The amendment made by section 206 [amending section 1331 [now 12731] of this title] shall apply to notifications under section 1331(d) [now 12731(d)] of title 10, United States Code, after the date of the enactment of this Act [Sept. 30, 1978]."

Effective Date of 1976 Amendment

Section 3 of Pub. L. 94–496 provided that: "This Act [amending this section and sections 1448, 1450, 1451, and 1452 of this title, and amending provisions set out as a note under section 1448 of this title] shall be effective as of September 21, 1972. No pay shall accrue to any person by virtue of the enactment of this Act for any period prior to October 1, 1976."

Short Title of 1989 Amendment

Section 1401 of title XIV of Pub. L. 101–189 provided that: "This title [enacting subchapter III of this chapter, amending this section and sections 1331 [now 12731], 1448 to 1452, and 1454 of this title and section 3101 [now 5301] of Title 38, Veterans' Benefits, and enacting provisions set out as notes under sections 1448, 1451, 1452, 1456, and 12731 of this title] may be cited as the 'Military Survivor Benefits Improvement Act of 1989'."

Short Title of 1985 Amendment

Section 701 of title VII of Pub. L. 99–145 provided that: "This title [amending this section and sections 1448, 1450 to 1452, and 1455 of this title, enacting provisions set out as notes under this section and sections 1448 and 1452 of this title, and repealing a provision set out as a note under section 1451 of this title] may be cited as the 'Survivor Benefit Plan Amendments of 1985'."

Short Title of 1980 Amendment

Section 1 of Pub. L. 96–402 provided: "That this Act [amending this section and sections 1451 and 1452 of this title, enacting provisions set out as notes under this section and section 1448 of this title, and amending provisions set out as a note under section 1448 of this title] may be cited as the 'Uniformed Services Survivor Benefits Amendments of 1980'."

End of 90-Day Period With Respect to Certain Individuals

Section 208 of Pub. L. 95–397, as amended by Pub. L. 96–107, title VIII, §816, Nov. 9, 1979, 93 Stat. 818 , provided that: "With respect to any individual who-

"(1) would be eligible for retired pay under chapter 67 [now 1223] of title 10, United States Code, on the effective date of this title [see Effective Date of 1978 Amendment note set out above] but for the fact that such individual is under 60 years of age; or

"(2) receives, before January 1, 1980, a notification that such individual has completed the years of service required for eligibility for such retired pay;

the 90-day period referred to in section 1447(2)(C) of title 10, United States Code (as amended by section 201 of this Act), and in sections 1448(a)(2) and 1448(a)(4)(B) of title 10, United States Code (as amended by section 202(a) of this Act) shall be considered to end on March 31, 1980."

Section Referred to in Other Sections

This section is referred to in sections 1078a, 1456 of this title.