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

Merwyn J. Miller
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Can a Remarried Spouse Claim a Veterans Benefit (Part 1)?

Divorced Spouse of a Veteran Who Marries a Non-Veteran Prior to Veteran’s Death and after Marriage to Veteran Terminates

Spouse of Deceased Veteran Who Remarries Another After Veterans Death

Can an individual who was previously married to a Veteran and has remarried claim the VA Non Service Connected Improved Pension 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 note 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 a Veteran Who Marries a Non-Veteran Prior to Veteran’s Death and after Marriage to Veteran Terminates: 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)] Therefore, remarrying another would not cause one who has become disqualified by divorce to somehow become qualified.

Spouse of Deceased Veteran Who Remarries Another After Veterans Death: Typically, the applicant would not be qualified. [38 USC 103(d)(1)] , 38 CFR 3.55, VA Manual M21-1/Part IV/Subpart III/Chapter 3/Section F/30] There are some very limited exceptions. If the remarriage is void or legally annulled, then the applicant might be qualified. Additionally, from January 1, 1971 to November 1, 1990, remarriage of a surviving spouse might not bar entitlement to the benefit if the remarriage was terminated (prior to November 1, 1990). After that date a remarried surviving spouse may, in some circumstances, obtain certain VA benefits such as Dependency and Indemnity Compensation but, typically, not the Aid & Attendance Benefit. The vast majority of the widow cases which we see involve the recent loss of the spouse. Therefore, the termination of any remarriage is typically well after the 1990 cut-off date.

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

Next month, Part 2 will deal with the rights of a former spouse who has not remarried.

 

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