Charlene C. Schweikert, Petitioner, v. Office of Personnel Management, Respondent, 884 F.2d 1398 (Fed. Cir. 1989)

DECISION

The decision of the Merit Systems Protection Board, No. PH08318810254, sustaining the denial of a survivor's annuity to Charlene C. Schweikert by the Office of Personnel Management, is affirmed.

OPINION

Regulations provide that a changed election is void unless it is filed with OPM before the retiree dies. 5 C.F.R. Sec. 831.628(d) (1988). Mr. Schweikert did not file an election to provide a survivor annuity before he died, and Mrs. Schweikert waived her right to an annuity when her husband retired. Therefore she is not entitled to an automatic survivor's annuity. 5 U.S.C. § 8341(b) (1) (Supp. II 1984). The argument that her husband bequeathed the annuity in a living will fails because the right to a survivor annuity is not testamentary. It is governed by statute and regulations. Zucker v. United States, 758 F.2d 637, 640 (Fed. Cir. 1985).