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M21-1, Part IV, Subpart iii, Chapter 3, Section D – Remarriage of a Surviving Spouse

Overview


In This Section

This section contains the following topics:
Topic
Topic Name
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1.  General Information on the Effect of a Surviving Spouse’s Remarriage

 


Introduction

This topic contains general information on the effect of a surviving spouse’s remarriage, including

Change Date

July 12, 2015

IV.iii.3.D.1.a.  VBMS Award Processing

Use the Veterans Benefits Management System (VBMS) to process awards for Dependency and Indemnity Compensation (DIC) and Survivors Pension.
Reference:  For information on processing awards in VBMS, see the VBMS-Awards User Guide.

IV.iii.3.D.1.b.  Provisions of 38 CFR 3.50 as They Apply to a Surviving Spouse

Under 38 CFR 3.50, in order to qualify as a surviving spouse for Department of Veterans Affairs (VA) purposes, a person must be unmarried.  Therefore, a surviving spouse who remarries is no longer eligible to receive VA benefits.
Exceptions:
  • If a surviving spouse remarries after age 55, he/she may retain eligibility for certain VA benefits under Public Law (PL) 107-330.
  • If a surviving spouse remarries after age 57, he/she may retain eligibility for certain VA benefits under PL 108-183.
References:  For more information on

IV.iii.3.D.1.c.  Acceptable Evidence of Remarriage

Under 38 CFR 3.213(a)(2), to establish the fact and date of remarriage, accept a surviving spouse beneficiary’s statement as proof of remarriage if it furnishes, at a minimum
  • the month and year of a remarriage, and
  • the present name, if the surviving spouse is a widow.
Note:  Formal proof is not required in the absence of contradictory information in the claims folder.
References:  For more information on

IV.iii.3.D.1.d.  When to Develop for the Surviving Spouse’s New Name

If the surviving spouse’s new name is not available, develop for it only if
  • the surviving spouse has custody of the Veteran’s child(ren)
  • the surviving spouse remains eligible for VA benefits, and/or
  • an overpayment is involved.
Reference:  For more information on the action to take when a name change is required, see M21-1, Part IV, Subpart iii, 3.D.1.e.

IV.iii.3.D.1.e.  Processing a Name Change

When a change of name is required, use the change of address function in Share to update the beneficiary’s name.  This should be done prior to taking any award action.

IV.iii.3.D.1.f.  Effect of Court Judgments on Marital Relationship Issues

In survivors cases, a marital relationship may be established by a Federal court judgment in a suit in which the U.S. was a party.
Follow the steps in the table below to determine entitlement of VA benefits when a court decision is made as to whether a surviving spouse has remarried.
Step
Action
1
Follow the court’s decision as to whether a surviving spouse has remarried when determining entitlement to VA benefits, even though the court determination may relate to other benefits such as Social Security and Federal Employees’ Compensation.
Note:  It is immaterial whether the court’s decision is made after a trial at which evidence is presented, or if the parties come to an agreement without trial, and the agreement is then adopted by the court and entered as the court’s judgment.
2
Determine whether survivors benefits should be paid, even if a court decides that a surviving spouse is not remarried.
Example:  A surviving spouse may nevertheless be barred under 38 CFR 3.50(b)(2) from payment of Survivors Pension, compensation, or DIC by reason of having lived as the spouse of another (inferred marriage).
Reference:  For more information on inferred marriage, see M21-1, Part IV, Subpart iii, 3.D.2.
Reference:  For more information on the effect of Federal court decisions, see 38 CFR 3.214.

IV.iii.3.D.1.g.  Eligibility for Benefits Under PL 107-330 After Remarriage

Under PL 107-330, which was effective February 4, 2003, a surviving spouse who remarries after age 55 retains VA Civilian Health and Medical Program (CHAMPVA) eligibility.
Note:  PL 107-330 is an exception to the requirement that a surviving spouse must remain unmarried in order to retain eligibility for VA benefits.
Reference:  For more information on CHAMPVA eligibility, see M21-1, Part IX, Subpart i, 4.2.

IV.iii.3.D.1.h.  Eligibility for Benefits under PL 108-183 After Remarriage

Under PL 108-183, which was effective January 1, 2004, a surviving spouse who remarries after age 57 retains eligibility for
  • DIC
  • VA home loans, and
  • VA educational benefits.
Note:  PL 108-183 is an exception to the requirement that a surviving spouse must remain unmarried in order to retain eligibility to VA benefits.

IV.iii.3.D.1.i.  Handling Requests for Restoration of Benefits Under PL 108-183

A claim for restoration of benefits terminated due to remarriage on or after age 57 must be submitted in writing.
Notes:
  • A surviving spouse had until December 16, 2004, to apply for reinstatement of benefits, if he/she remarried
    • after age 57, and
    • prior to December 16, 2003, which was the effective date of the enactment of PL 108-183.
  • Benefits restored under PL 108-183 may not be paid for any period prior to January 1, 2004.
Reference:  For information on resuming benefits under PL 108-183, see M21-1, Part IV, Subpart iii, 3.D.12.

IV.iii.3.D.1.j.  Handling Requests for Continuation of Benefits Under PL 108-183

If a surviving spouse notifies VA of his/her remarriage on or after age 57, take the steps described in the table below.
Step
Action
1
2
Ask the survivor whether his/her current spouse is a Veteran (block 10 on VA Form 21-686c).
3
If the current spouse is a Veteran
  • ask the survivor to
    • provide the spouse’s Social Security number or VA claim number (block 11 on VA Form 21-686c), and
    • indicate whether the current spouse is receiving VA benefits, and
    • cross-reference the survivor’s and current spouse’s claims folders, if necessary.

2.  Conduct Warranting the Inference of the Remarriage of a Surviving Spouse

 


Introduction

This topic contains information on conduct warranting an inference of a surviving spouse’s remarriage, including

Change Date

July 12, 2015

IV.iii.3.D.2.a.  Effect of Requirements in 38 CFR 3.50

38 CFR 3.50(b)(2) states that the claimant must be unmarried to receive survivors benefits as the surviving spouse of a deceased Veteran.
38 CFR 3.50 imposes the additional requirement that the claimant not be living with another person and holding himself/herself out publicly as the spouse of that person.
If the claimant is living with another person and is holding himself/herself out as the spouse of that person, there is held to be an inference of remarriage.  Payment of survivors benefits is then barred under 38 CFR 3.50(b).
Exceptions:
  • If the claimant remarries after age 55, he/she may retain eligibility for certain VA benefits under PL 107-330.
  • If a surviving spouse remarries on or after age 57, he/she may retain eligibility for certain VA benefits under PL 108-183.
References:  For more information on

IV.iii.3.D.2.b.  Community’s Perspective of Claimant’s Marital Status

It is not necessary to establish that the claimant and his/her significant other were known generally throughout the community as a married couple in order to invoke an inference of remarriage under 38 CFR 3.50(b).
It is sufficient to establish there was a single instance when the claimant and his/her significant other held themselves out as a married couple.

IV.iii.3.D.2.c.  Circumstances Under Which Remarriage May Be Inferred

The table below describes circumstances under which a remarriage may be inferred and rulings on each circumstance.
Circumstances
Decisions
States recognizing common law marriages
In most cases, conduct that would warrant an inference of remarriage under 38 CFR 3.50(b) is sufficient to establish a common law marriage under State law.
Reference:  For information on common law marriages, see M21-1, Part III, Subpart iii, 5.C.
States not recognizing common law marriages
38 CFR 3.50(b) requires VA to deny benefits to a surviving spouse in States where the claimant is living as the spouse of another person but is not legally married because the State does not recognize common law marriages.
Existence of impediment to marriage
It is possible to infer remarriage for VA purposes even though a legal marriage (common law or otherwise) might be impossible because of the existence of an impediment to marriage.
Example:  A claimant might be living with a married person and holding himself/herself out as the spouse of that person. Although a legal marriage may not be established under these circumstances because the other party is already married, benefits would still be barred under 38 CFR 3.50(b).

IV.iii.3.D.2.d.  Holding Out Requirement

Before benefits can be denied based on an inference of remarriage, it must be established that
  • the claimant lived with another person, and
  • held himself/herself out openly to the public as the spouse of the other person.
Note:  Where there is no attempt to hold himself/herself out as a married couple, entitlement to benefits is not affected.
Example:  The claimant is openly living with another person.  They have made no representations to the effect that they are married.  The claimant’s entitlement to benefits is not affected.

IV.iii.3.D.2.e.  Conduct Terminated Before Entitlement Date
Conduct warranting an inference of remarriage does not constitute a bar to benefits if the conduct terminated before the date of entitlement to VA benefits.  Unless, the conduct warranted the establishment of a common law marriage, VA benefits cannot be paid until the marriage is dissolved.
Reference:  For information on common law marriages, see M21-1, Part III, Subpart iii, 5.C.

IV.iii.3.D.2.f.  Lifting of Restrictions for DIC Claims Filed on or After October 1, 1998

The Veterans Benefits Act of 1998 (PL 105-78) provides that effective October 1, 1998, the bar to granting DIC benefits to remarried surviving spouses does not apply if the surviving spouse ceases
  • living with another person, and
  • holding himself/herself out openly to the public as that person’s spouse.
Notes:
  • Resumption of benefits can only be made from October 1, 1998, even if cessation of the relationship occurred prior to this date.
  • The provisions of 38 CFR 3.114(a) and 38 CFR 3.31 apply to the commencement of the period of payment.

IV.iii.3.D.2.g.  Developing for Inference of Remarriage

Follow the steps in the table below to develop for the inference of remarriage when specific information is received from a reliable source that a claimant’s conduct provides a reasonable basis for an inference of marriage.
Step
Action
1
Advise the claimant of the
  • nature of the information received
  • effect of a finding that an inferred marital relationship exists, and
  • his/her right to
    • furnish evidence
    • have a personal hearing, and
    • representation.
Note:  The claimant is entitled to know the name of the source of the information. However, do not volunteer the name of the source of the information.
2
Concurrently, prepare a request for a field examination to
  • obtain the claimant’s statement about the alleged marital relationship, and
  • secure any other evidence that may be necessary for a determination as to whether or not entitlement is barred by an inference of remarriage.
Reference:  For information on field examinations, see M21-1, Part III, Subpart vi, 8.8.
3
Ask the field examiner to determine a specific date from which any inferred marital relationship commenced.

IV.iii.3.D.2.h.  Information That May Disprove Inference of Marriage

Infer the marriage unless the claimant establishes by a preponderance of the evidence that he/she is
  • not living with another person, or
  • living with another person but they are not holding themselves out publicly as husband and wife.
Note:  The burden of proof shifts to the claimant once credible evidence has been submitted that the claimant has engaged in conduct warranting an inference of remarriage.

IV.iii.3.D.2.i.  Preparation of Administrative Decisions When the Inference of Remarriage Is at Issue

If it is determined that a surviving spouse has engaged in conduct warranting an inference of remarriage, prepare a two-signature decision using the format in M21-1, Part III, Subpart v, 1.A.2.
The Pension Management Center Manager (PMCM) may delegate authority to approve the decision to supervisors not lower than Coaches/Section Chiefs.

IV.iii.3.D.2.j.  DIC Award Adjustment After Remarriage Established

If the surviving spouse is in receipt of Survivors Pension or DIC, terminate the award effective the first day of the month in which the relationship began.
Reference:  For more information on award adjustments, see 38 CFR 3.500(n)(3).

3.  Suspending and Terminating Payments to a Surviving Spouse After Remarriage When No Children Are Involved


Introduction

This topic contains information on suspending and terminating payments to a surviving spouse after remarriage when no children are involved, including

Change Date

July 12, 2015

IV.iii.3.D.3.a.  When to Suspend Benefits After Remarriage

Per 38 CFR 3.213(b), suspend an award to a surviving spouse if information is not of record regarding the

IV.iii.3.D.3.b.  Suspending Benefits After Remarriage and Requesting Additional Information

Suspend benefits effective the first of the month following the month for which VA last paid the beneficiary and leave the end product (EP) pending while requesting any needed information regarding the remarriage.
Note:  Application of due process procedures may be required before suspension of payments per M21-1, Part I, 2.A .

IV.iii.3.D.3.c.  How to Terminate Benefits After Remarriage

Terminate benefits effective the first day of the month of the remarriage per 38 CFR 3.500(n)(1).

IV.iii.3.D.3.d.  Notifying the Surviving Spouse of the Award Termination

When a surviving spouse’s award is terminated, send notice of the change to the surviving spouse whether or not an adjustment is made under 38 CFR 3.657(b)(2).
Reference:  See  M21-1, Part IV, Subpart iii, 3.D.1.d when name change is involved.

4.   Handling Pension and DIC Cases Following the Remarriage of a Surviving Spouse


Introduction

This topic contains information on handling pension and DIC cases following the remarriage of a surviving spouse, including

Change Date

July 12, 2015

IV.iii.3.D.4.a.  Developing for Child’s Entitlement After Surviving Spouse’s Remarriage

If there are children entitled to benefits or increased benefits in their own right due to remarriage of a surviving spouse, and complete information on the surviving spouse’s remarriage is not of record
  • suspend benefits effective the first of the month following the month for which VA last paid the beneficiary
  • establish a 60-day control, and
  • request necessary information concerning
    • the remarriage
    • income for any children in custody in pension cases, and/or
    • the whereabouts of the surviving spouse from persons having custody of the children.
Reference:  For more information on the effect of a spouse’s remarriage, see

IV.iii.3.D.4.b.  Determining Each Child’s Entitlement After Surviving Spouse’s Remarriage

Under 38 CFR 3.152(c)(4), a claim is not required for any child
  • for whom payments are being made under a separate award (including an award in suspense), or
  • who was included in the surviving spouse’s claim.

IV.iii.3.D.4.c.  Handling Apportioned Awards After Surviving Spouse’s Remarriage

When suspending payments to the surviving spouse
  • do not change
    • apportioned pension, DIC and Death Compensation awards to any children
    • separate pension awards to children out of custody, or
    • DIC awards to children over age 18, and
  • do not automatically suspend the awards for children out of custody, or over 18 in school; these children are getting benefits in their own right.
Reference:  For more information on requesting information in pension or DIC cases, see  M21-1, Part IV, Subpart iii, 3.D.4.d.

IV.iii.3.D.4.d.  Requesting Information in Pension or DIC Cases

Request the following information to be submitted within 60 days:
If the information is not submitted within 60 days, suspend payments the first of the month following the month for which VA last paid the beneficiary.
If the information is submitted within one year of request, take action, if otherwise in order and subject to action as described in M21-1, Part IV, Subpart iii, 3.D.4 and5, to authorize the full rates payable to children.
Note:  When considering pension entitlement for children, the income of their custodian must also be considered.
Reference:  For more information on counting the income of a child’s custodian, see M21-1, Part V, Subpart iii, 1.E.4.f.

IV.iii.3.D.4.e.  Determining Children’s Entitlement in Old Law or Section 306 Cases

In Old-Law and Section 306 Pension cases, when the surviving spouse’s award is discontinued, the only entitlement for children in custody of the surviving spouse is to current-law pension.
Reference:  For more information on Section 306 and Old-Law Pension, see M21-1, Part V, Subpart iii, 1.C.

IV.iii.3.D.4.f.  Determining Continued Entitlement to an Apportionment
Termination of a surviving spouse’s entitlement to Old-Law or Section 306 Pension does not deprive a child, who is not in the surviving spouse’s custody, of continued entitlement at the same rate of payment he/she was receiving as an apportionment.
An award of current-law pension may be more advantageous to the child, and he/she has the right to elect this benefit over Old-Law or Section 306 Pension.

IV.iii.3.D.4.g.  Determining Entitlement for Multiple Children in DIC Cases When the Surviving Spouse Loses Entitlement

In DIC cases, when the child’s entitlement arises because the surviving spouse’s entitlement has been terminated, withhold benefits under 38 CFR 3.107 for any additional child that may be payable when a claim is filed within one year of the date that the child’s entitlement arose.

5.  Processing Payments to Children After the Surviving Spouse’s Remarriage


Introduction

This topic contains information on processing payments to children after the surviving spouse’s remarriage, including

Change Date

July 12, 2015

IV.iii.3.D.5.a.  Handling an Overpayment Created Following Surviving Spouse’s Remarriage

If there are children entitled to benefits and acceptable notice of remarriage has been received too late to avoid creation of an overpayment
  • suspend the surviving spouse’s award the first of the month following the month for which VA last paid the beneficiary
  • maintain a 30-day control, and
  • determine the month for which VA last paid the beneficiary by checking Share following the next processing cycle.
If the month for which VA last paid the beneficiary is of record, apply the provisions of 38 CFR 3.657(b)(2) to reduce or eliminate the overpayment.
Exception:  If a surviving spouse remarries after age 57, he/she may retain eligibility for certain VA benefits under PL 108-183.  No overpayment is created in these cases, since entitlement continues to exist.
Reference:  For information on considering dependents in
pension claims, see M21-1, Part V, Subpart iii, 1.F.

IV.iii.3.D.5.b.  Appropriate Award Action in Current-Law Pension and DIC Cases Following the Surviving Spouse’s Remarriage

Follow the steps in the table below to determine the appropriate award action in current-law pension and DIC cases following the surviving spouse’s remarriage.
Step
Action
1
Use the table below to determine the appropriate award action depending on payment rate.
If the surviving spouse received payment at a rate …
Then …
in excess of that payable to the child or children in custody in their own right
amend the payee 10 award to authorize only the rate to which such child or children would be entitled from the first day of the month of remarriage to the first of the month following the month for which VA last paid the beneficiary.
less than that payable to the child or children in custody
discontinue the payee 10 award the first of the month following the month for which VA last paid the beneficiary.
2
Prepare amended awards to the surviving spouse and concisely state the reason for the adjustment in the REMARKS section.
Example:  Surviving spouse remarried [date], first of the month following the month for which VA last paid the beneficiary [date]. Include additional remarks if other retroactive adjustments, not related to the remarriage, were taken.

IV.iii.3.D.5.c.  Example:  Action Taken on Remarried Surviving Spouse’s Award

Situation:  The surviving spouse
  • has three children in her custody
  • is receiving current-law pension of $1,136 per month, and
  • remarried May 15, 2008.
The first of the month following the month for which VA last paid the beneficiary is July 1, 2008.
Assume no income for the surviving spouse, stepparent, or any of the children.
Result:  From May 1, 2008 until July 1, 2008, withhold $659 from the surviving spouse’s award and pay $477 to account for the amount the children should have been paid during this time period.
Per 38 CFR 3.850(c), the children’s awards
  • are effective July 1, 2008, and
  • result in three payments of $159 each monthly to the remarried surviving spouse as custodian of each child.
Notes:
  • Pay each child under a separate award.  Consolidated payee 31-series awards are no longer used to pay benefits to two or more children.
  • Use a locally-generated letter to explain the action taken.

6.  Handling Section 306 and Old Law Pension Cases Following the Remarriage of a Surviving Spouse


Change Date

July 12, 2015

IV.iii.3.D.6.a.  Appropriate Action in Section 306 and Old Law Pension Cases

Take the appropriate award action in Section 306 and Old Law Pension cases as described in  M21-1, Part IV, Subpart iii, 3.D.4.
If additional information regarding appropriate action in Section 306 and Old Law Pension cases after the remarriage of the surviving spouse is needed, please contact Pension & Fiduciary (P&F) Service by e-mail atVAVBAWAS/CO/PENSION POL & PROC.

7.  Action on Children’s Awards Following the Remarriage of a Surviving Spouse


Introduction

This topic describes the action taken on children’s awards following the remarriage of a surviving spouse, including

Change Date

July 12, 2015

IV.iii.3.D.7.a.  Determining Children’s Entitlement to Survivors Pension

For children in the surviving spouse’s custody, use the income of the surviving spouse and stepparent to determine the children’s entitlement to Survivors Pension.

IV.iii.3.D.7.b.  Determining Child’s Award Rate and Effective Date

Use the table below to determine the children’s award rate and effective date.
If …
Then pay the children …
the surviving spouse’s award was adjusted to reduce an overpayment
at the children’s only rate, effective the date the surviving spouse’s award terminated.
the surviving spouse’s award was terminated by award action
  • effective the first day of the month of the surviving spouse’s remarriage
  • at the old rate that was payable for the spouse and children in custody for the month of remarriage, and
  • increased to the rate payable for children only from the first day of the month following remarriage, subject to prior payments.
Note:  These procedures are effective October 1, 1982. The provisions of 38 CFR 3.31 apply because there has been an increase in the total benefits payable.
the rate payable for children is less than the amount previously paid for the spouse and children
effective the first day of the month of remarriage.
the rate payable for children is greater than the amount previously paid for the spouse and children
at the
  • old rate payable for spouse and child(ren), effective the first day of the month of remarriage, and
  • rate payable for a child(ren) only, effective the first day of the monthfollowing remarriage.

IV.iii.3.D.7.c.  Terminating the Surviving Spouse’s Award Following Remarriage

If no overpayment to the surviving spouse exists, terminate the surviving spouse’s award effective the first day of the month of remarriage.

8.  Effect of the Termination of a Surviving Spouse’s Remarriage


Introduction

This topic contains information on the effect of the termination of a surviving spouse’s remarriage, including

Change Date

July 12, 2015

IV.iii.3.D.8.a.  General Considerations for Reinstatement of Benefits After Remarriage

Before November 1, 1990, a surviving spouse who remarried or engaged in conduct warranting an inference of remarriage could establish surviving spouse status if
  • the subsequent marriage was terminated, annulled, or declared void
  • court proceedings started before November 1, 1990, or
  • the parties stopped living together in the case of an inferred marriage.
After October 31, 1990, PL 101-508 and PL 102-86 govern remarriages of surviving spouses, and the benefits of a surviving spouse or child cannot be restored after the marriage unless the marriage is annulled or determined to be void.  Once an inference of remarriage of a surviving spouse is established benefits cannot be restored if the relationship ends
Exception:  PL 105-78 made it possible for a surviving spouse to establish DIC entitlement after termination of the remarriage.
References:  For more information on

IV.iii.3.D.8.b.  Consideration of Termination Prior to November 1, 1990

PL 101-508 provides that a surviving spouse claimant whose remarriage has been terminated by divorce, death, or termination of conduct warranting an inference of remarriage can be recognized as the Veteran’s surviving spouse only if the termination of the remarriage took place before November 1, 1990.
Exception:  DIC may be reinstated after September 30, 1998.  See  M21-1, Part IV, Subpart iii, 3.D.11.

IV.iii.3.D.8.c.  Provisions of PL 102-86 and PL 102-568

PL 102-86 amended the provision to prohibit reinstatement based upon date of remarriage or inference of remarriage instead of date of claim.
Generally, reinstatement is barred if the remarriage or inference of remarriage occurs after October 31, 1990.  PL 102-568 amended this provision to exclude its application to any formerly remarried surviving spouse for whom a legal proceeding to terminate an existing marital relationship was started before November 1, 1990, if that proceeding directly resulted in the termination of the marriage.
Supporting evidence must be submitted showing that the surviving spouse actually filed for divorce with a court prior to November 1, 1990.

IV.iii.3.D.8.d.  Reestablishment of Eligibility as a Surviving Spouse

A remarried surviving spouse whose subsequent marriage is annulled or declared void can reestablish eligibility as a surviving spouse.
This applies to both pension and DIC recipients.

IV.iii.3.D.8.e.  Determining When to Develop for Termination of a Legal Marriage

Initiate development for termination of a legal marriage only if
  • it is alleged that legal proceedings which resulted directly in the termination of the marriage were initiated prior to November 1, 1990
  • the marriage was actually terminated prior to November 1, 1990, or
  • the marriage was annulled or void.

IV.iii.3.D.8.f.  Development for Termination of a Legal Marriage

Follow the steps in the table below to develop for termination of a legal marriage.
Step
Action
1
Request a statement about the claimant’s marriages showing where, when, and how each one was dissolved.
Note:  This information may be obtained by telephone.
2
Request a statement of whether or not the claimant ever filed an application for or received VA benefits as the spouse or surviving spouse of another Veteran.
Note:  If the claimant is receiving VA benefits as the surviving spouse of another Veteran, the claimant must provide the name of that Veteran.
3
Did the claimant receive VA benefits as the spouse or surviving spouse of another Veteran?
  • If yes, show the
    • name of the other Veteran, and
    • VA claim number.
  • If no, go to Step 4.
4
Does the claimant reside somewhere other than a State, or does the claimant’s statement of marriage dissolution conflict with other evidence of record?
  • If yes, request the following as proof of termination of each marriage occurring after the date of the Veteran’s death: a copy of the
    • final decree of divorce or annulment, or
    • public record of death.
  • If no, documentary evidence of the termination of marriages is not required.
Reference:  For more information on proving termination of marriage and documents required, see

9.  Termination of Surviving Spouse’s Remarriage:  Remarriage Alleged to Be Void


Change Date

November 16, 2006

IV.iii.3.D.9.a.  Procedure When Remarriage Is Alleged to Be Void

Follow the steps in the table below if the claimant alleges that a marriage barring entitlement to VA benefits is void.
Step
Action
1
Fully develop the facts surrounding the alleged void marriage.
2
If possible, obtain certified statements from the parties to the marriage.
3
After complete development, submit the case to Regional Counsel for a legal opinion as to whether or not the marriage is void.
Note:  Regional Counsel makes the determination. No administrative decision is required.
Reference:  For information on jurisdiction over determinations, seeM21-1, Part III, Subpart iii, 5.A.3.
4
If Regional Counsel determines that the remarriage is void, establish entitlement, if otherwise in order, effective the
  • date cohabitation ceased, or
  • date VA receives the claim, whichever is later.
Reference:  For more information on effective dates for void marriages, see 38 CFR 3.400(v)(1).

10.  Termination of Surviving Spouse’s Remarriage:  Remarriage Annulled


Introduction

This topic contains information on the termination of a surviving spouse’s remarriage when the remarriage is annulled, including

Change Date

July 12, 2015

IV.iii.3.D.10.a.  Procedure to Follow if Claimant Alleges that a Marriage Barring Entitlement to VA Benefits Is Annulled

Follow the steps in the table below if the surviving spouse alleges that the remarriage has been annulled.
Step
Action
1
Request a copy of the court decree of annulment.
2
Is there any evidence of fraud in obtaining the annulment?
  • If yes, go to Step 3.
  • If no, accept the annulment decree as evidence of termination of the remarriage. An administrative decision is not required.
3
Initiate full development if there is evidence of fraud. As part of this development, request
  • copies of the petition to the court for annulment
  • the court’s response, and
  • a transcript of the testimony.
4
Questions as to whether or not the decree was obtained through fraud are mixed questions of fact and law. For this reason, after development, submit questions to Regional Counsel for an opinion as to the legal effect.

IV.iii.3.D.10.b.  Fraudulent Annulments

A finding that an annulment was fraudulently obtained renders it invalid for VA purposes.
If the Regional Counsel opinion indicates that fraud was involved in obtaining an annulment, prepare a three-signature administrative decision using the format inM21-1, Part III, Subpart v, 1.A.2.  The issue is marital status of claimant.
The PMCM may delegate authority to approve the decision to supervisors not lower than Coaches/Section Chiefs.

IV.iii.3.D.10.c.  Judicial Decree of Annulment

When a judicial decree of annulment is accepted as proof of termination of remarriage, the effective date of an award of benefits is the date the decree became final if the claim is filed within one year of that date.
In all other cases, entitlement is based on the date VA receives the claim.
Reference:  For more information on judicial decrees of annulment, see 38 CFR 3.400(v)(2).

11.  Reinstatement of DIC Eligibility After Termination of Remarriage


Introduction

This topic contains information on the reinstatement of DIC eligibility after termination of remarriage, including

Change Date

July 12, 2015

IV.iii.3.D.11.a.  Reinstatement of DIC Eligibility After Termination of Remarriage

Effective September 30, 1998, PL 105-178, Section 8207 made it possible for a surviving spouse to reestablish DIC eligibility after termination of remarriage.  Although in most instances Section 8207 permits “restoration” of DIC to an individual who had been in receipt of DIC prior to remarriage, DIC may be paid to an otherwise eligible claimant whose remarriage has terminated, regardless of whether the claimant had previously received DIC.
Therefore, after September 30, 1998, eligibility for DIC (but not pension) is established in any case in which the remarriage of the surviving spouse is terminated by
  • death
  • divorce, or
  • annulment.
Exception:  38 U.S.C.103(d)(3) does not allow for restoration of DIC benefits upon termination of a remarriage in the event that the DIC benefits were originally forfeited as the result of fraud.
Reference:  For more information on the reinstatement of DIC eligibility after termination of remarriage, see 38 CFR 3.55(a)(3).

IV.iii.3.D.11.b.  Development to Establish Required Relationship After Termination of Remarriage

Develop to establish the required relationship.  Obtain the following required evidence:
  • a statement of all of the claimant’s marriages, including where (city and state), when (month/day/year) and how each marriage was dissolved, and
  • a statement as to whether the claimant has ever filed an application or received VA benefits as a spouse or surviving spouse of any other Veteran and, if so, the name and VA claim number of the other Veteran.

IV.iii.3.D.11.c.  Payment Dates for Reinstated DIC

Although, the date of enactment of PL 105-178, Section 8207 was June 9, 1998, no payment may be made prior to October 1, 1998.
Therefore, taking into consideration 38 CFR 3.31 and 38 CFR 3.114(a), awards for reinstated DIC entitlement may be processed with a payment date as early as, but no earlier than, October 1, 1998.

IV.iii.3.D.11.d.  Determination of Appropriate Payment Dates for Reinstated DIC

The payment date is the first day of the month following the occurrence of the event that ended the remarriage, but not earlier than October 1, 1998, if a claim is filed within one year
  • after the date of death, or
  • of the date the divorce became final.

IV.iii.3.D.11.e.  Selection of EP

If the surviving spouse previously received DIC, use EP 137.

IV.iii.3.D.11.f.  Assessment of Surviving Spouse’s Eligibility for DIC

The provisions of 38 CFR 3.114(a) apply if
  • the surviving spouse is otherwise eligible for DIC, and
  • the remarriage has been terminated.
This means that a surviving spouse can have benefits reinstated with a payment date of October 1, 1998, or an effective date one year prior to the date of reopened claim (subject to 38 CFR 3.31), whichever is later.
Note:  Benefits may be reinstated with a payment date of October 1, 1998 if
  • the remarriage was terminated as of June 9, 1998 (the liberalizing portion of the law), and
  • the claim was received within one year of the law change.

IV.iii.3.D.11.g.  Example 1:  Surviving Spouse’s Eligibility for Reinstated DIC
Situation:  The table below describes the situation.
Date
Description
February 1, 1992
DIC is terminated for a surviving spouse based on her remarriage.
May 7, 1997
The second spouse dies.
November 15, 1998
The surviving spouse files a claim.
Result:  The payment date of the reinstated DIC award is October 1, 1998.  38 CFR 3.114(a) applies here because the surviving spouse met the requirements of the liberalizing legislation on the date of enactment (June 9, 1998).

IV.iii.3.D.11.h.  Example 2:  Surviving Spouse’s Eligibility for Reinstated DIC

Situation:  The table below describes the situation.
Date
Description
July 1, 1993
DIC is terminated based on the surviving spouse’s remarriage
November 5, 1998
  • The remarriage ends.
  • The divorce becomes final.
January 15, 1999
A claim for reinstated DIC entitlement is received.
Result:
  • The payment date of the reinstated DIC award is December 1, 1998. (The effective date would be November 5, 1998, in accordance with 38 U.S.C. 5110(1) and then subject to 38 CFR 3.31.)
  • Payment would be made from the first day of the month following the date the divorce became final, or December 1, 1998.

IV.iii.3.D.11.i.  Example 3:  Surviving Spouse’s Eligibility for Reinstated DIC

Situation:  The table below describes the situation.
Date
Description
August 1, 1994
DIC ends due to the surviving spouse’s remarriage.
July 17, 1998
The marriage subsequently terminated by death.
November 27, 1998
The claim for reinstated DIC is received.

Result:  The payment date of reinstated DIC benefits is October 1, 1998, in accordance with 38 U.S.C. 5110(1), and the earliest date permitted under PL 105-178, Section 8207(b).


IV.iii.3.D.11.j.Reinstatement of Eligibility for Other Benefits After November 30, 1999

PL 106-117, Section 502, effective December 1,1999, now permits entitlement to the following benefits for a surviving spouse whose remarriage has been terminated by death, divorce, annulment, or cessation of an inferred remarriage:
The date of entitlement to benefits is the first day of the month following the occurrence of the event which ended the remarriage, but no earlier than December 1, 1999, if a claim is filed within one year of the date of death or within one year of the date the termination of remarriage became final.
Notes:
  • Benefits are not payable for the period from October 1, 1998, through November 30, 1999.
  • The provisions of PL 106-117, Section 502 apply to a surviving spouse who has ceased living with another person and holding him/herself out openly to the public as that person’s spouse.
  • Prior to November 30, 1999, VAOPGCPREC 13-98 held that a surviving spouse who regained DIC eligibility under PL 105-178, Section 8207, effective October 1, 1998, did not regain eligibility for any of the above benefits.

12.  DIC Eligibility Based on Remarriage upon Attaining Age 57

 


Introduction

This topic contains information on DIC eligibility based on remarriage upon attaining age 57, including

Change Date

September 7, 2016

IV.iii.3.D.12.a.Benefits for a Surviving Spouse Who Remarries After Age 57 

Under 38 CFR 3.55(a)(10), effective January 1, 2004, a surviving spouse who remarries on or after his/her 57th birthday remains eligible for
  • DIC
  • VA home loans, and
  • VA educational benefits.
Important:  A surviving spouse who remarried after age 57, but before December 16, 2003, is eligible for DIC only if the claim for DIC was received before December 16, 2004.

IV.iii.3.D.12.b.  Full Concurrent Payment of DIC and SBP for Surviving Spouses Who Remarry After Age 57

Per Sharp et al. v. the United StatesFed Circ (August 26, 2009), there is no bar to full concurrent payment of the Survivor Benefit Plan (SBP) and the basic DIC rate when a surviving spouse is entitled to DIC by virtue of having remarried after age 57.
References:  For more information on

IV.iii.3.D.12.c.  Continuation of DIC Eligibility Based on Remarriage After Age 57

DIC eligibility will continue for any current DIC recipients who notify VA that he/she remarried after age 57.

IV.iii.3.D.12.d.  Payment Date for Reinstatement of DIC

Do not reinstate DIC to a surviving spouse who remarried after age 57 effective earlier than January 1, 2004.  The payment date is subject to 38 CFR 3.31.
Note:  Surviving spouses who remarried after age 57, but before December 16, 2003, and whose claims are received on or after December 16, 2004, are notentitled to a reinstatement of benefits.

IV.iii.3.D.12.e.  Example 1:  Claim for Reinstatement of DIC Disallowed

Situation:  A surviving spouse’s DIC was discontinued on June 1, 2003, due to remarriage on May 20, 2003, at age 58.
The surviving spouse’s claim for reinstatement of DIC was received on January 22, 2008.
Result:  Disallow the DIC claim.  The surviving spouse remarried before December 16, 2003, but the claim for reinstatement was not received before December 16, 2004.
Note:  Per 38 CFR 3.55(9), the surviving spouse would still be eligible for medical care under 38 U.S.C. 1781 because he/she remarried after age 55.

IV.iii.3.D.12.f.  Example 2:  Claim for Reinstatement of DIC Granted

Situation:  A surviving spouse’s DIC was discontinued on June 1, 2003, due to remarriage on May 20, 2003, at age 58.
The surviving spouse’s claim for reinstatement of DIC was received on October 14, 2004.
Result:  Reinstate DIC effective January 1, 2004 (payment date February 1, 2004, under 38 CFR 3.31).  The surviving spouse remarried before December 16, 2003, and the claim for reinstatement was received before December 16, 2004.

IV.iii.3.D.12.g.  Example 3:  DIC Eligibility Continued

Situation:  A surviving spouse is in receipt of DIC.
In July 2008, the surviving spouse reported to VA that he/she had remarried on June 16, 2008, at the age of 62.
Result:  Because the surviving spouse remarried after age 57, payment of DIC will continue.

IV.iii.3.D.12.h.  Selection of Appropriate EP

When processing a claim for reinstatement or continuation of DIC eligibility
based on remarriage after age 57, assign EP 137.
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