When a military divorce occurs in Florida, the division of assets and benefits becomes a highly complex process. Among the most misunderstood yet critically important of those benefits is the Survivor Benefit Plan (SBP). While military pensions are divisible in a Florida divorce as marital property, the SBP is a separate and distinct benefit—a life annuity that must be affirmatively elected and protected to provide post-death income to a former spouse. Understanding who gets the SBP, how it is awarded, and what happens if key deadlines are missed is essential for anyone navigating military divorce. A seasoned Tampa divorce lawyer will be vital in ensuring this benefit is not lost due to oversight, misinterpretation, or delay.
What Is the Survivor Benefit Plan?
The Survivor Benefit Plan is a Department of Defense annuity program that allows a military retiree to ensure a portion of their retired pay continues to a designated beneficiary after their death. Without an SBP election, all pension payments stop upon the death of the retiree. That means even if a former spouse was receiving a portion of the military retirement pay under a valid court order, those payments would end immediately upon the retiree’s passing—unless the SBP was properly elected.
SBP is akin to a life insurance policy, but instead of being based on market factors or private underwriting, it is a government-sponsored continuation benefit. For many former spouses in a military divorce, it represents the only source of continued income after the death of the military member.
Understanding and securing SBP rights during a Tampa divorce proceeding is essential, especially when long-term financial stability is at stake.
SBP and Florida Equitable Distribution
Under Florida’s equitable distribution scheme, military pensions are divisible marital assets. However, SBP is not a divisible asset in the same way. Instead, SBP is a continuation mechanism for the pension—something that must be elected, paid for, and carefully documented during the divorce.
In a Tampa divorce, the court can order that the former spouse be named as the “former spouse beneficiary” for SBP purposes. But simply including that language in a final judgment is not enough. The military member—or the former spouse through deemed election—must submit the proper forms to the Defense Finance and Accounting Service (DFAS) within one year of the final judgment.
Failure to file timely paperwork will almost always result in the loss of SBP coverage, even if the court awarded it. A Tampa divorce lawyer who handles military divorces understands that these administrative deadlines are just as important as the court order itself.
Key Terminology in SBP Elections
- Spouse Coverage: When a service member is married at retirement and names their spouse as beneficiary.
- Former Spouse Coverage: Coverage elected in a divorce, designating the ex-spouse to receive the benefit.
- Deemed Election: A process that allows the former spouse to notify DFAS directly of their entitlement to SBP if the retiree fails to act.
- Reserve Component SBP (RCSBP): Similar coverage for National Guard or Reserve members, often triggered before full retirement.
Each of these terms carries legal and financial implications. A Tampa divorce lawyer will ensure the final judgment uses precise language to align with DFAS requirements and preserve enforceability.
SBP Costs and Premiums
SBP coverage is not free. Premiums are deducted from the service member’s retired pay, and the cost depends on the coverage amount. The default coverage is 55% of the retired pay, with a premium of 6.5% of that amount, though reduced coverage can be elected.
In a Tampa military divorce, the parties may negotiate who pays the SBP premium. In many cases, the court will assign the cost to the former spouse if they are receiving the benefit, but this is not automatic.
Premiums can be treated:
- As part of the former spouse’s pension share,
- Paid directly by the service member, or
- Allocated proportionally in a settlement agreement.
Without clear language, confusion may arise later about whether the former spouse must reimburse the member for those costs. A Tampa divorce lawyer should draft these provisions with attention to financial equity and administrative clarity.
The One-Year Rule and Deemed Election
Federal law requires that an SBP election in favor of a former spouse must be submitted to DFAS within one year of the divorce decree. There are two methods for submitting:
- Voluntary Election by Retiree: The military member completes and submits the SBP form to DFAS.
- Deemed Election by Former Spouse: If the retiree fails to act, the former spouse may submit the order directly to DFAS with a request for deemed election.
Failure to meet this one-year deadline results in permanent forfeiture of the SBP right, even if the court ordered it. There are no exceptions to this rule. A Tampa divorce lawyer must file the correct documents promptly and confirm DFAS acceptance.
What Happens If the Service Member Remarries?
If a service member remarries and did not elect former spouse coverage after the divorce, their new spouse will typically become the default SBP beneficiary. This can happen even if the divorce judgment awarded SBP to the former spouse.
This is another reason why the one-year deadline is so crucial—once coverage switches to a new spouse, it cannot be reversed without consent or a court order that is no longer timely.
A Tampa divorce lawyer should ensure that all SBP paperwork is filed immediately after the final judgment to prevent inadvertent loss of coverage due to subsequent remarriage.
Reservists and the Survivor Benefit Plan
Reserve component service members face additional complexity with SBP elections. They must make a Reserve Component SBP (RCSBP) election upon attaining 20 years of qualifying service, even if they are not yet receiving retirement pay.
If divorce occurs after this election, the former spouse may be awarded RCSBP coverage through the court. However, if the election was not made or properly updated post-divorce, the coverage can be lost permanently.
For Guard or Reserve divorces in Tampa, it is especially important for a Tampa divorce lawyer to review the service member’s current RCSBP election status and ensure the order includes enforceable language requiring updates post-divorce.
Court Orders and SBP Election Language
To be enforceable by DFAS, the court order must contain specific elements:
- Identify the former spouse by name,
- State clearly that SBP coverage is awarded,
- Specify the level of coverage (full retired pay or reduced),
- Assign responsibility for premiums, and
- Be certified and submitted within one year of the divorce.
A generic reference to “pension continuation” is insufficient. A Tampa divorce lawyer must use precise statutory language and submit all necessary DFAS forms (DD Form 2656-1 for election, DD Form 2656-10 for deemed election) to ensure compliance.
Can SBP Be Waived?
Yes. The former spouse can waive SBP coverage voluntarily. In some cases, this is done in exchange for other financial benefits in the divorce settlement—such as a larger share of real estate or a lump-sum buyout.
Waivers must be explicit and in writing. A Tampa divorce lawyer may use a waiver where:
- The former spouse is young and intends to remarry,
- The cost of premiums is unaffordable,
- Life insurance is used as a substitute income protection,
- Or both parties agree that pension continuation is unnecessary.
Waiving SBP without proper legal advice can lead to significant financial hardship. Once waived, SBP cannot be reinstated unilaterally.
Alternatives to SBP: Life Insurance
In some Tampa military divorces, the parties agree to substitute life insurance in place of SBP. While this can be effective, it comes with potential risks:
- Life insurance policies may lapse or be changed without notice.
- Premiums may increase with age or health conditions.
- Unlike SBP, life insurance proceeds are not automatically enforced by DFAS.
A Tampa divorce lawyer should draft enforcement provisions and require annual proof of coverage if life insurance is used instead of SBP. Court orders should include consequences for failure to maintain the policy.
Modifications and Termination of SBP Awards
Generally, SBP awards cannot be modified after the one-year submission deadline. However, if the parties remarry each other, the former spouse may again qualify for “spouse coverage.”
In some cases, DFAS may allow changes if the beneficiary dies, remarries under age 55 (which terminates coverage), or waives the benefit in writing. But these changes are narrow and do not offer relief for late filings or administrative errors.
A Tampa divorce lawyer must assume that the first filing is the only opportunity to preserve SBP rights and draft the judgment accordingly.
FAQ: SBP and Military Divorce in Tampa
Q: Can the court order the service member to provide SBP coverage?
A: Yes. Florida courts have the authority to award SBP coverage to a former spouse, and that order is enforceable if submitted to DFAS within one year.
Q: Does SBP coverage continue if the former spouse remarries?
A: If the former spouse remarries before age 55, SBP coverage ends. If remarriage occurs after age 55, the benefit continues uninterrupted.
Q: What happens if the retiree dies before making the SBP election?
A: If no SBP election was made and the service member dies, the former spouse generally cannot receive any portion of the pension unless alternative protections were set up.
Q: Can SBP be awarded even if the parties were married less than 10 years?
A: Yes. Unlike the 10/10 rule for direct DFAS payments of pension, SBP has no minimum marriage duration requirement.
Q: What is a deemed election, and why is it important?
A: A deemed election allows the former spouse to submit the court order and claim SBP coverage if the service member fails to act. It must be done within one year of the divorce.
Q: Who pays the SBP premium after divorce?
A: That depends on the divorce settlement. The premium can be paid from the service member’s share, the former spouse’s share, or split by agreement.
Q: Can I substitute life insurance for SBP in a Tampa divorce?
A: Yes, but this should be carefully negotiated and documented. The risks of lapse or policy change must be addressed in the final judgment.
Q: What if the service member names a new spouse after our divorce?
A: If the former spouse did not complete a deemed election in time, the new spouse may become the default beneficiary—potentially eliminating the former spouse’s claim.
Q: Is SBP coverage automatic in divorce?
A: No. It must be specifically ordered and submitted to DFAS. Without proper filings, the benefit can be lost even if the court awarded it.
Q: Does SBP continue for the former spouse’s lifetime?
A: Yes, as long as the former spouse does not remarry before age 55 and all eligibility requirements are met.
The McKinney Law Group: Divorce Lawyers in Tampa Focused on Smart Strategies and Real Results
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