law offices of merwyn j. miller
191 calle Magdalena, suite 270 • encinitas, San Diego County, ca  92024 • 760-436-8832

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Basic Rule
Remarriage has Ended
Spouse at Least 57 and Remarriage after Certain Date
Spouse at Least 57 and Claim Filed in 2004
Remarriage Annulment
Divorce Vacation

Dear Mr. Miller:

Introduction: My Mom is now in an assisted living facility and the cost is going to send her to the poor house in a few more months. It is costing $6500 after the base rent and all of the assisted services they are providing. Don’t get me wrong, the facility is doing a great job and is entitled to everything they are charging, it is just that she can’t afford it. She is $4000 in the hole every month and that $40,000 bank account is not going to last much longer.

We have heard about the VA Aid and Attendance program. I did some checking on your website and you said she could get $1150 per month. That would be such a great help. My Mom is the surviving spouse of a Veteran. He died several years ago. I think that won’t cause a problem. But she remarried a few years ago. I have been told that that will disqualify her.

Grasping at Straws for Help

Dear Grasping:

Basic Rule: I assume that that marriage is either still going or was terminated after 1990. That being the case, the basic rule is that a remarried spouse cannot obtain benefits. However, there are several categories of exceptions:

Remarriage has Ended: If the remarriage has ended, a 1998 law grants to the surviving spouse the ability to apply for Dependency and Indemnity Compensation (DIC), assuming all other requirements are met. DIC has similarities to the Aid and Attendance program (actually referred to as the Veteran’s or Widow’s Pension) but is not based on net worth or income. For the most part DIC requires that the Vet have died in service or from an injury or disease related to military service. (back to top)

Spouse at Least 57 and Remarriage after Certain Date: If the surviving spouse is at least 57 years old at the time of the remarriage and that remarriage occurred on or after December 16, 2003 and the claim was filed on or after January 1, 2004, a 2003 law allows the surviving spouse to file claims for DIC, home loans, CHAMPVA, and Dependents Educational Assistance Program (DEA) benefits even if the remarriage has not ended. (back to top)

Spouse at Least 57 and Claim Filed in 2004: If the surviving spouse is at least 57 years old at the time of the remarriage and that remarriage occurred before December 16, 2003, another exception allows the surviving spouse to file a claim for those benefits mentioned in #2 above BUT the claim had to be filed by December 16, 2004.

From your description, I would think that exception #1 might be available if the remarriage has ended, but this would only allow a claim for DIC. Exception #2 appears possible but, again, it does not cover the so called Aid and Attendance program. Exception #3 also appears very doubtful since claims had to be filed over 10 years ago. (back to top)

Remarriage Annulment: One other possibility exists: Have the remarriage annulled or declared void by a court. Typically, marriages can be vacated based on a number of reasons. Mistake of fact or law, depending on the state, may be one of those reasons. Possibly not realizing that to remarry would cut off potential future VA benefits might qualify. To take this approach will typically require an attorney who is well versed in divorce laws. (back to top)

Divorce Vacation: Similarly, a divorced spouse (whether or not remarried) is disqualified from benefits. It is sometimes possible to have a divorce vacated. If that occurs, then benefits might be possible. This action will, again, typically require a well versed attorney. (back to top)

Conclusion: All cases rest on their individual facts so check with a competent attorney before you make any decisions or take any action. (back to top)