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

Facebook Twitter
Sign up for our
Email Newsletter

FREE Webinar!
Don't Go Broke in
Assisted Living!!! Learn How...
Veterans & Widows Receive
Up to $23,396/Yr!

Sealing of Safe Deposit
Boxes in California

VA Aid & Attendance--How Can I Correctly Choose Help?
One can consult with various people. The choice can mean the difference between success and failure. What you need to know to protect yourself!
A Survival Guide for Those Left Behind: The Price of a Loved One’s Dying...
What do you do when you find your spouse expired on the floor?
Estate Planning: The Price of Organization...
This report will guide you through the questions surrounding getting your estate planning in order.

Books Dealing with Estate
Planning, Trusts and Probate Law

Can a Former Non-Remarried Spouse Claim a Veterans Benefit (Part 2)?

Divorced spouse of Living Veteran

Divorced Spouse of Deceased Veteran

Last month we discussed whether an individual who was previously married to a Veteran and has remarried claim the VA Improved Pension Benefit. This month we discuss the flip side of the coin: whether an individual who was previously married to a Veteran but who has not remarried claim the benefit. (This benefit is often referred to as the Aid and Attendance benefit.)

The answer would depend upon the “family relationship” of the individual to the veteran at the time of application. If there is a “relationship” that we have not considered, please let us know. For purposes of this article, we are going to assume that all other qualifying factors are met. We may make reference to individuals other than former spouses for analogy. But not that this discussion is limited to veterans and former spouses only. Also, this is only a summary and there can be exceptions to every rule. Without an actual factual case, it would be an overwhelming task to discuss all of the various exceptions and how they might or might not apply.

Divorced spouse of Living Veteran: A spouse of a living veteran cannot apply. Therefore, a divorced spouse of a living veteran cannot apply. The only person who can apply for the Pension Benefit is the veteran or the surviving spouse. [Veterans Benefits Manual, §7.1, 2009 Edition, Lexis-Nexis] This is apparent from the pension programs that exist. There is a Non-Service Connected Disability Pension available to Veterans. There is also a Non-Service Connected Death Benefit in the form of the Death Pension. This latter benefit is one to which the surviving spouse may be entitled, but not a divorced spouse of a Living Veteran. [38 USC 1541(a)] Whether a veteran could apply for his former spouse on the basis that a divorced spouse is a dependent due to terms of a court divorce order would probably occur rather rarely and is a different question than the one presented. This article does not deal with that latter issue.

Divorced Spouse of Deceased Veteran: To qualify as a surviving spouse of a veteran, the claimant must show that he or she was the valid spouse of the veteran at the time of the veteran’s death. [38 USC 101(2), 38 CFR 3.50] By definition, a person divorced from the veteran was not the valid spouse of the veteran when the veteran died. There is a possible exception as to being a “valid spouse” for someone who attempted to marry a veteran but the marriage was invalid due to a legal impediment. It would not appear that this exception would apply to a divorced spouse situation. Another possible exception would be if the surviving spouse separated from the veteran due to physical or emotional abuse and was not “at fault.” This latter exception has been applied to excusing the failure to cohabitate at the time of the Veterans death but does not appear to have ever been applied to a divorce situation. [Gregory v Brown, 4 Vet App 108, 113 (1993), Westberry v Principi, 255 F 3d 1377 (Fed Cir. 2001)]

Obviously, every case rests on its own set of facts and the above is only a general overview. Further, the law changes from time to time.