There are over 9 million surviving spouses of veterans currently living in the United States. Many of these surviving spouses are receiving long-term care or will need some type of long-term care in the near future, and there are funds available from the Veterans Administration (“VA”) to help pay for that care. Unfortunately, many of those who are eligible have no idea that any benefits exist for them or that an attorney can help them become eligible.
There are three types of pension benefits available that provide monthly cash payments to surviving spouses who either have low income, long-term health care needs, or both. The pension benefit is referred to as “Death Pension.”
Death Pension. The VA provides a monthly cash payment to surviving spouses of veterans who meet active duty and discharge requirements, who are either 65 or older or disabled, and who have limited income and assets. A surviving spouse can receive up to $661 per month (with additional payments available if dependent children are present in the home).
Death Pension with Housebound Allowance. A slightly higher monthly payment is available to surviving spouses of wartime veterans (who meet the same service requirements as Service Pension) but who are confined to their home for medical reasons. A surviving spouse can receive up to $808 per month (with additional payments available if dependent children are present in the home).
Death Pension with Aid and Attendance. The highest monthly benefit is available when a surviving spouse requires the assistance of another person to perform activities of daily living, or is blind or nearly so, or is a patient in a nursing home. This benefit, often referred to simply as “Aid and Attendance” is the most widely-known and talked-about benefit as it offers the highest possible monthly payment. A surviving spouse can receive up to $1056 per month (with additional payments available for dependent children).
Valid Marriage. The surviving spouse and the veteran must have been married for at least one year prior to the veteran’s death. This particular requirement is met, however, if the couple was married for any period of time and a child was born to them before or during the marriage, if the marriage occurred before or during the veteran’s service, or if the marriage occurred prior to the following dates:
World War II veteran January 1, 1957
Korean War veteran February 1, 1965
Vietnam War veteran May 8, 1985
Persian Gulf war veteran January 1, 2001
Next, the surviving spouse must not have remarried or lived with someone and held themselves out as married, unless the remarriage ended prior to November 1, 1990, by death, or unless legal proceedings to end the remarriage were started by November 1, 1990. Additionally, the surviving spouse must have been living with the veteran at the time of the veteran’s death. If the couple was living apart, it must have been for medical, business, or other reasons besides marital discord, unless the marital discord was not the fault of the surviving spouse.
Wartime service and discharge. As noted above, the deceased veteran must have met certain service and discharge requirements before the surviving spouse can be considered for any type of pension benefit. The deceased veteran must have served 90 days of active duty with at least one day beginning or ending during a period of war. After September 1, 1980, the active duty requirement increases to 180 days. In addition, the veteran must have been discharged under circumstances other than dishonorable.
Disability. To qualify for any type of pension benefit, a surviving spouse must also be 65 or older, or be permanently and totally disabled.
Permanent and total disability includes a claimant who is:
- In a nursing home;
- Determined disabled by the Social Security Administration;
- Unemployable and reasonably certain to continue so throughout life; or
- Suffering from a disability that makes it impossible for the average person to stay gainfully employed.
Asset and Income Requirements
The financial eligibility requirements of any pension benefit address a claimant’s net worth and income. A claimant is the individual filing for benefits. A surviving spouse should have no more than $50,000 in countable assets. Retirement assets are counted, but a claimant’s home and vehicle are not. However, the $50,000 limit is a guideline only – it is not a rule set by the VA. The VA looks at a claimant’s total net worth, life expectancy, income and medical expenses to determine whether the surviving spouse is entitled to any monthly death pension benefits.
The role of an elder law attorney is to help you reposition your assets and income in a manner that will meet the eligibility requirements for VA benefits while protecting your ability to qualify for Medicaid should you need it.
A surviving spouse must have Income for VA Purposes (“IVAP”) that is less than the benefit for which he or she is applying. IVAP is calculated by taking a claimant’s gross income from all sources less countable medical expenses. Countable medical expenses are recurring out-of-pocket medical expenses that can be expected to continue throughout a claimant’s lifetime. If a claimant’s IVAP is equal to or greater than the annual benefit amount, the veteran or surviving spouse is not eligible for benefits. Table 2 below shows the applicable income and pension amounts for surviving spouses.
Is the Surviving Spouse Housebound?
If a surviving spouse qualifies for regular death pension and is housebound, her maximum allowable income increases, as does the annual benefit amount. The VA defines housebound as being substantially confined to the home or immediate premises due to a disability that will likely remain throughout the claimant’s lifetime. A surviving spouse with no dependent children who is housebound is eligible for benefits of up to $808 per month.
Unreimbursed medical expenses will reduce a surviving spouse’s income dollar for dollar after a small co-pay (5% of the annual pension amount) is met. But remember, to be eligible for an additional allowance for being housebound, the surviving spouse’s IVAP must be less than the annual income threshold.
To illustrate, a surviving spouse with $20,00 in annual income would not be eligible for a special monthly pension for being housebound. However, if the surviving spouse is able to show annual income of $20,000 and unreimbursed medical expenses of $25,000, the surviving spouse would be eligible for $9,696 in annual death pension with housebound allowance (paid on a monthly basis) because the surviving spouse has negative IVAP.
Does the Surviving Spouse Require the Aid and Attendance of Another?
If a surviving spouse can show, through medical evidence provided by a primary care physician or facility, that he or she requires the aid and attendance of another person to perform activities of daily living, that surviving spouse may qualify for an additional monthly death pension allowance commonly referred to as “aid and attendance.”
The VA defines the need for aid and attendance as:
- Requiring the aid of another person to perform at least two activities of daily living, such as eating, bathing, dressing or undressing;
- Being blind or nearly blind; or
- Being a patient in a nursing home.
Table 2 below shows the applicable pension amounts for each type of VA pension available to a surviving spouse.
The maximum death pension for a surviving spouse is $1,056 per month ($12,681 per year). The VA pays this amount directly to the surviving spouse regardless of where he or she is living.
As stated above, the VA looks at a surviving spouse’s total net worth, life expectancy, and income and expenses to determine whether the spouse should qualify for special monthly pension. Unlike Medicaid, there is currently no look-back period and no penalty for giving assets away. However, one must use caution when considering a gifting strategy to qualify a surviving spouse for death pension benefits as this will cause a period of ineligibility for Medicaid which could be as long as five years. Other Medicaid planning strategies may apply when trying to qualify a surviving spouse for death pension with aid and attendance.
A client should work with an elder law attorney to create a plan that will gain eligibility for monthly death pension but not disqualify the client from Medicaid.
The Application Process
While the application process for special monthly pension can be agonizingly slow – some applications take over a year before the VA makes a decision – the benefit is retroactive to the month after application submission. Having the proper documentation in place at the time of application (for example, discharge papers, medical evidence, proof of medical expenses, death certificate, marriage certificate and a properly completed application) can cut the processing time in half.
VA Benefits are not paid retroactively before application, even if the claimant can show they were eligible. Therefore, applications should be prepared and submitted as early as possible to ensure maximum benefit.
Dependency and Indemnity Compensation (“DIC”). DIC is a monthly benefit paid to a surviving spouse whose veteran spouse died:
(a) while on active duty;
(b) from a service-related injury or disease; or
(c) from a non service-related injury or disease,
who was receiving or was entitled to receive VA compensation for a totally disabling service-connected disability for:
(a) the 10 years immediately preceding the veterans death or
(b) since the veteran’s release from active duty and for at least 5 years immediately preceding death, or
(c) for at least one year before death if the veteran was a former prisoner of war who died after September 30, 1999.
Like death pension, DIC is a monthly payment provided to the surviving spouse. However, the surviving spouse does not have to prove a medical need, nor are there income or asset limits for DIC. The basic monthly rate of DIC is $1,154 for an eligible surviving spouse.
Burial Reimbursement. A surviving spouse who paid for a veteran’s burial and/or funeral may be eligible for partial reimbursement if the veteran’s death was due to the following:
- The veteran died because of a service-related disability,
- The veteran was receiving VA pension or compensation at the time of death,
- The veteran was entitled to receive VA pension or compensation, but decided not to reduce his/her military retirement or disability pay,
- The veteran died while hospitalized by VA, or while receiving care under VA contract at a non-VA facility,
- The veteran died while traveling under proper authorization and at VA expense to or from a specified place for the purpose of examination, treatment, or care,
- The veteran had an original or reopened claim pending at the time of death and has been found entitled to compensation or pension from a date prior to the date of death, OR
- The veteran died on or after October 9, 1996, while a patient at a VA-approved state nursing home.
Reimbursement for Service-Related Death. VA will pay up to $2,000 toward burial expenses for deaths on or after September 11, 2001. If the veteran is buried in a VA national cemetery, some or all of the cost of transporting the deceased may be reimbursed.
Reimbursement for Nonservice-Related Death. VA will pay up to $300 toward burial and funeral expenses and a $300 plot-interment allowance for deaths on or after December 1, 2001. If the death happened while the veteran was in a VA hospital or under VA contracted nursing home care, some or all of the costs for transporting the veteran’s remains may be reimbursed.
Time is of the essence for surviving spouses who may be eligible for benefits available through the Veterans Administration. Failing to apply as soon as possible after a veteran’s death could result in the loss of monthly payments the surviving spouse would otherwise be eligible to receive. If you know of someone who may be eligible, please give us a call at (405) 435-9700 – we would be happy to help!
|Table 1: Wartime Periods|
|World War I||April 6, 1917 through November 11, 1918, inclusive. If the veteran served with the United States military forces in Russia, the ending date is April 1, 1920. Service after November 11, 1918 and before July 12, 1921 is considered World War I service if the veteran served in the active military, naval, or air service after April 5, 1917 and before November 12, 1918.|
|World War II||December 7, 1941, through December 13, 1946, inclusive. If the veteran was in service on December 31, 1946, continuous service before July 26, 1947, is considered World War II service.|
|Korean Conflict||June 27, 1950, through January 31, 1955, inclusive.|
|Vietnam Era||The period beginning on February 28, 1961, and ending on May 7, 1975, inclusive, in the case of a veteran who served in the Republic of Vietnam during that period. The period beginning on August 5, 1964, and ending on May 7, 1975, inclusive, in all other cases.|
|Future Dates||The period beginning on the date of any future declaration of war by the Congress and ending on a date prescribed by the Presidential proclamation or concurrent resolution of the Congress.|
|Mexican Border Period||May 9, 1916, through April 5, 1917, in case of a veteran who during such period served in Mexico, on the borders thereof, or in the waters adjacent thereto.|
|Persian Gulf War||August 2, 1990, through date to be prescribed by Presidential proclamation or law.|