As it turns out, a lot. Love and marriage can be of supreme importance when the Veterans Administration (VA) is considering an application for death pension from a surviving spouse. It is true that marriage is one way to document a veteran’s dependent, and this would mean an additional $332 per month to a vet’s pension in 2016. But failure to document a veteran’s marriage would certainly not be an outright bar to pension. By contrast, in the case of a surviving spouse’s claim, if you cannot document that the marriage between the surviving spouse and the veteran was valid, you have no claim at all, regardless of how eligible the surviving spouse may be otherwise.
Let’s consider the VA’s definitions of a surviving spouse and marriage. Pursuant to 38 CFR §3.50, a surviving spouse is someone of the opposite sex whose marriage to the veteran was valid; who was the spouse of the veteran at the time of the veteran's death; who lived with the veteran continuously from the date of marriage to the date of the veteran's death; and who “has not remarried or has not since the death of the veteran and after September 19, 1962, lived with another person of the opposite sex and held himself or herself out openly to the public to be the spouse of such other person.” Marriage is defined in 38 CFR §3.1(j) as “a marriage valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued.” Despite these broad definitions, there are plenty of exceptions that complicate the issue of determining whether someone qualifies as a surviving spouse, particularly when you are dealing with multiple remarriages. A notable exception is that, despite the federal government’s recognition of same-sex marriages conflicting with the VA’s definition of a surviving spouse as being someone of the opposite sex, the VA will consider same-sex marriages as long as the marriage was valid per the terms of 38 CFR §3.1 (j) above.
Another exception is that, if there was a separation that was due to the misconduct of, or procured by, the veteran without the fault of the spouse, it is not required to meet the continuous cohabitation requirement. And you only need to provide a statement from the surviving spouse to document this situation in the absence of contradictory information. Furthermore, per 38 CFR §3.60, “for the purposes of determining entitlement to pension under 38 U.S.C. 1521, a person shall be considered as living with his or her spouse even though they reside apart unless they are estranged.” Therefore, separations due to one spouse being institutionalized and the other spouse living in the community are not considered breaks in continuous cohabitation.
You may also have to consider the dates and duration of any marriage to determine its validity. The section on marriage dates, 38 CFR §3.54, states, “Death pension may be paid to a surviving spouse who was married to the veteran: (1) One year or more prior to the veteran's death, or (2) For any period of time if a child was born of the marriage, or was born to them before the marriage, or (3) Prior to the applicable delimiting dates,” which are 10 years after the end of that veteran’s particular wartime service period. For example, if a vet passed away 364 days after the date of the marriage, the surviving spouse may still have a claim, if a child was born of the union or they were married within 10 years of the end of their wartime service period. There is even a section under 38 CFR §3.54 for those clients who have married the same veteran more than once on or after January 1, 1958. If that scenario should ever present itself, bear in mind that “the date of the original marriage will be used in determining whether the statutory requirement as to date of marriage has been met.”
Finally, even the requirement that the surviving spouse remain a faithful widow/er, and not remarry after the death of the veteran to stay eligible for death pension, has its exceptions. Title
38 CFR §3.55, which addresses reinstatement of benefits eligibility based upon terminated marital relationships, and which explains under what circumstances remarriage of a surviving spouse will not bar the furnishing of benefits to such surviving spouse, can be a daunting regulation to understand. The myriad dates you must consider not only for death pension, but for other types of benefits for which surviving spouses may qualify as well, can cause much confusion. However, to summarize briefly here, the only way for a surviving spouse who remarried to still be eligible for non-service-connected disability pension benefits would be if any remarriage was either:
- Void
- Annulled
- Remarriage occurred after January 1, 1971 and was terminated before November 1, 1990 or terminated by legal proceedings initiated before November 1, 1990.
Service-connected disability dependency and indemnity compensation (DIC), medical benefits, and even educational assistance is available for surviving spouses who remarried and terminated the remarriage during other time periods, but there is no non-service-connected pension for a surviving spouse who remarried unless that remarriage met one of the three criteria listed above.
The most important thing to document for all prior marriages of both a veteran and the spouse is their termination. This means having your client dig up death certificates with the cause of death explicitly stated, or divorce/annulment decrees, etc. This can be a difficult task when you have clients with multiple marriages, a circumstance that is becoming more common as people live longer lives. Documents of this nature, or other reminders of past marriages, may not be preserved or can be a touchy subject for even adult children to discuss with their parents. However, you must insist on this documentation, because if any of the previous marriages cannot be shown to have been terminated by death or divorce, the later marriage that could be the basis for a VA claim would not be valid.
If you would like to join our complimentary VA Tech School you can register here: https://attendee.gotowebinar.com/rt/3181521930337595395
In these ever changing times, it is critical to stay current with the laws, policies and practice of the Veterans Administration. VA Tech School monthly webinars provide education on the legal technical aspects of qualifying for the Improved Pension (with Aid and Attendance) for wartime veterans. The monthly webinars will be on the first Wednesday of each month at 12:00 p.m. Eastern Time.
Victoria L. Collier, Veteran of the United States Air Force, 1989-1995 and United States Army Reserves, 2001-2004. Victoria is a Certified Elder Law Attorney through the National Elder Law Foundation; Author of “47 Secret Veterans Benefits for Seniors”; Author of “Paying for Long Term Care: Financial Help for Wartime Veterans: The VA Aid & Attendance Benefit”; Founder of The Elder & Disability Law Firm of Victoria L. Collier, PC; Co-Founder of Lawyers with Purpose; and Co-Founder of Veterans Advocate Group of America.
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