In a previous blog we talked about the VA’s definition of a spouse for VA benefit purposes. But to be considered a Veteran “surviving spouse,” you must still be married to the Veteran at the time of the Veteran’s death. Given this definition, it makes sense that a spouse would be denied surviving spouse benefits if he or she was remarried prior to the Veteran’s death. But what if the spouse was remarried after the Veteran’s death? That’s what we’re going to discuss in this blog.
As mentioned earlier, remarriage before the Veteran’s death will cancel any benefits. But the situation becomes more complicated when the remarriage occurs after the Veteran’s death. The general rule for surviving spouse benefits states that the surviving spouse must have been married to the Veteran at the time of his or her death. Remarriage after the Veteran’s death usually cuts off entitlement to any VA benefits, but there are some exceptions to that rule.
Surviving Spouse Benefits: Remarriage Exceptions
Exception #1: The remarriage is void or annulled.
A individual is eligible for surviving spouse benefits if he or she meets the other eligibility requirements and the remarriage was voided or annulled by a court with the authority to do so. There are some fraud exceptions here. If the VA suspects fraud or collusion via any red flags that they may detect, that will always cancel any access to benefits.
Even if the remarriage was voided or annulled, the surviving spouse still must have been married to the Veteran at the time of his or her death. Here’s an interesting example that happened in our office a while back. We were meeting with a gentleman and talking about his marriages over the years. When I asked him about divorce dates, he couldn’t recall any.
After doing some digging, we realized that he had never been divorced from any of these women and was actually married to three women at one time! We argued that the spouse in this instance was the first woman he married. This is because you cannot be married to more than one woman at a time and he was never legally divorced from his first wife.
Voiding or annulling a marriage does not automatically qualify you for surviving spouse benefits if the Veteran and surviving spouse were divorced at the time of the Veteran’s death. As a general rule, divorce is going to cancel any possible benefits. But there are exceptions to that rule as well.
So how do you void or annul a marriage that has already been terminated by divorce? The divorce legally ends the marriage, but the voiding or annulment says that the marriage never existed. This is possible in the case that the individual was too young or maybe had some mental health issues and didn’t realize what they were doing when they got married. We also see this in the case of impotence, duress, and fraud. These things are generally grounds for voiding or annulling a marriage.
Exception #2: The remarriage or relationship must have been terminated before 1990.
In this case we have a 32 year old law versus the new law which was enacted in 1998. So we have a 32 year old law versus a 24 year old law, but the VA just refers to them as “old” and “new.” The old law might still be relevant in this particular example.
If a surviving spouse filed a claim for VA survivor benefits prior to 1990, then the old law would apply. This is going to be very rare because that means the claim would be 32 years old, but never decided by the VA. This law could also apply if there was some kind of appeal still going from the denial of a VA claim. In my 30 years of helping Veterans, I’ve never seen a case where this old law applies. But it is a valid exception in very rare cases.
Under the new law, remarried individuals are eligible for surviving spouse benefits only if their remarriage has ended. Remarriage could have ended by divorce, annulment, dissolution, or death of the second spouse. This could also apply if the surviving spouse was never really legally remarried.
There are some technicalities here as far as whether the individual was legally remarried. So the new law provides that the surviving spouse would be entitled to DIC benefits or to have the DIC benefits reinstated if the exception applies. Under the new law, retroactive benefits are not attainable. But under the old law, you can get retroactive benefits. These benefits would include Disability Indemnity Compensation (DIC), CHAMPVA, Dependent Educational Assistance (DEA), and VA home loans.
Exception #3: The surviving spouse is at least 57 years old when they remarry, the marriage was on or after December 16, 2003, and the claim for benefit is pending and was filed on or after January 1, 2004.
This exception can get quite complicated and is very limited by design. I don’t know how they assign these arbitrary dates to these exceptions, but they are what they are. In this case, the remarriage need not to have ended for the surviving spouse to be eligible. They can still be remarried and receive benefits such as DIC, CHAMPVA, DEA, and VA home loans.
Exception #4: The surviving spouse is remarried but was remarried before the enactment of the Veterans Benefit Act of 2003.
Surviving spouses that fall into this category only had one year to apply after the enactment of this new law. If they didn’t apply during that year long exemption period, those benefits are no longer available. Again, this is a very rare case which I have not seen very often. But if this applies to you or a surviving spouse you know, we can certainly help them obtain benefits.
Surviving Spouse Benefits: VA Pension
We hope this information has helped clarify the rules and exceptions for VA surviving spouse benefits. Hopefully how you understand what happens if you become remarried and how that affects your eligibility as a surviving spouse. One thing we didn’t mention in this blog is VA pension, also called Aid & Attendance. As a general rule, remarriage will make you automatically ineligible for Aid & Attendance. The above exceptions only apply to DIC, CHAMPVA, DEA, and VA home loans.
Contact Us So We Can Help!
If you have any additional questions about VA surviving spouse benefits, please complete this form or give us a call at (229) 226-8183. You can also send us an email to [email protected]. We’re here for our Veterans and looking forward to helping them receive the benefits that they deserve.
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