Several years ago she remarried. Is she entitled to any pension assistance now that she needs assisted living?
The pension eligibility criteria for surviving spouses include the following:
(1) Can be any age, whereas a veteran applying must be 65 years or older or 100% disabled;
(2) Must have been married to the veteran for at least one year or had a child with the veteran, if married less than one year.
(3) Must have lived with the veteran throughout the marriage and at the time of death (this does not require physically being in the same location because soldiers and sailors are often on duty in distant locations;
(4) AND TYPICALLY NEVER REMARRIED, however there is one rare exception under Title 38, Chapter 1, Part 3, §3.55. If a second marriage took place on or after January 1, 1971 and ended such that the divorce began on or before November 1, 1990 and the surviving spouse is now single, then a surviving spouse previously married to a veteran may qualify.
However, you should speak directly with a VA certified attorney or VSO about other programs your Mother may qualify for, either now or in the future. Be sure to give them details on your Father’s death and military service history. The Dependency and Indemnity Compensation Program (DIC) allows a surviving spouse to keep benefits from the first spouse if married after the age of 57 on or after December 16, 2003. Alternatively, the widow may reapply for benefits if the second marriage ends due to death or divorce. The basic DIC rate for a qualified surviving spouse is $1,154.00, but can be in-creased if the surviving spouse is homebound or in need of Aid and Attendance.
DIC at lower rates is also available for parents of a single veteran who died during service or of a service related connected condition. The definition of parent also includes grandparents and aunts and uncles who actually raised a child, but never formally adopted the deceased veteran. Very few eligible parents know of this program. Certain dependent children might qualify as well.
Under a US District Court decision for the Northern District of California in Nehmer vs. U.S. Department of Veteran Affairs, 712 F. Supp. 1404, (N.D. Cal. 1989), the VA must re-adjudicate previously denied claims for IHD, PD or HCL filed by Nehmer class members (Vietnam Veterans on the land and Blue Water Veterans from January 9, 1962 to May 7, 1975 and their survivors) and provide retroactive benefits. This requirement involves claims filed or denied from September 25, 1985 to the effective date of the VA final regulation establishing a presumption of service connection for the disease claimed. Be sure to check The Nehmer Guide to see what constitutes a claim and spousal eligibility. Three diseases were added to the list of diseases associated with Agent Orange/herbicide exposure, namely – Parkinson’s disease, an ischemic heart condition (angina, heart attack, hardening of the arter-ies), and hairy cell and other chronic B-cell leukemia . If you think you or a parent qualify you can still apply through August 10, 2011 and possibly go back 25 years!
Disclaimer: Information contained in this column is meant to be of general information on frequently asked questions concerning disability, elder law, estate planning and probate law, and does not contain specific legal advice to a client. No attorney-client relationship is created by reading this column.
