Know The Criteria To Qualify Your Client As A Widow of A Veteran

Veterans and Widows of Veterans can obtain tax free income to help pay for unreimbursed medical expenses through a program called Improved Pension, often referred to as Aid and Attendance. The question often arises as to if a person is a widow. Usually this is in the context of when the Veteran and the spouse were divorced or separated. If the couple was divorced, then they are considered EX-spouses, not widows. But what about separated? Or, what if the divorce was set aside?

The initial criteria to establish widow status is that the Veteran and the spouse:

(1) had a valid marriage (not to include same-sex marriages that are legally recognized),
(2) were married for at least one year prior to the Veteran’s death, and
(3) were continuously cohabitating when the veteran died.

As with any law, there are exceptions to the law. With regard to being married at the time of death, there is a possibility that a divorce can be set aside or vacated after the Veteran died. If so, the VA Regional Counsel, upon review of all relevant documents, such as the court decree that set aside the divorce, can determine that the decree setting aside the divorce is a valid means that the claimant was the legal surviving spouse of the Veteran.

But, the issue of continuous cohabitation must still be established. Continuous cohabitation sounds like the Veteran and the spouse must have lived in the same place, without separation, until the Veteran’s death. For most couples, that is the case. However, there are acceptable exceptions.

The couple may be separated and living apart if the separation is due to:

(1) medical reasons,
(2) marital discord wherein the surviving spouse was not materially at fault in the separation, or they
(3) lived apart for other reasons that do not show an intent on the part of the surviving spouse to desert the Veteran.

When in doubt, seek counsel from an attorney who is accredited by the Veterans Administration. VA benefits can be instrumentally helpful, but navigating the system can be daunting. Attorney Members of Lawyers with Purpose, LLC receive continuous education about how to assist Veterans and their Families.

Written by Victoria L. Collier, CELA and Co-Founder of Lawyers with Purpose