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Updated Nov 20, 2024

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

  
January 30, 2023

VII.i.2.E.1.a.  VBMS Award Processing

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

VII.i.2.E.1.b.  Provisions of 38 CFR 3.50 as it Applies 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 upon attaining age 55, they may retain eligibility for certain VA benefits under
    • Public Law (PL) 107-330, and
    • PL 116-315.
  • If a surviving spouse remarries upon attaining age 57, they may retain eligibility for certain VA benefits under
    • PL 108-183, and
    • PL 116-315.
References:  For more information on

VII.i.2.E.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

VII.i.2.E.1.d.  When a Remarriage Statement Is Not Needed for Reconsiderations of DIC

  
A statement of remarriage is not needed from a surviving spouse who reapplies for DIC benefits or elects a reevaluation of a previously denied DIC claim if they
  • indicated they have not remarried since the death of the Veteran on their original application for benefits, and
  • were at least age 55 (if effective date of DIC grant is January 5, 2021, or later) or 57, as applicable, at the time of their original claim.
Important:  The above exception includes DIC claims that can result in retroactivity based on a congressional or court ordered review, such as reevaluation claims related to the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act, under 38 U.S.C. 1305.  However, if contradictory evidence indicating a surviving spouse may have remarried exists, development should be initiated to obtain a remarriage statement, which can include telephone development.

VII.i.2.E.1.e.  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), or
    • 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 VII, Subpart i, 2.E.1.f.

VII.i.2.E.1.f.  Processing a Name Change

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

VII.i.2.E.1.g.  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, Death 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 VII, Subpart i, 2.E.2.
 
Reference:  For more information on the effect of Federal court decisions, see 38 CFR 3.214.

VII.i.2.E.1.h.  Eligibility for Benefits Under PL 107-330 After Remarriage

  
Under PL 107-330, which was effective February 4, 2003, a surviving spouse who remarries upon attaining 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 XIII, Subpart i, 3.H.

VII.i.2.E.1.i.  Eligibility for Benefits Under PL 108-183 After Remarriage

  
Under PL 108-183, which was effective January 1, 2004, a surviving spouse who remarries upon attaining 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.

VII.i.2.E.1.j.  Eligibility for Benefits Under PL 116-315 After Remarriage 

  
Under PL 116-315, which is effective January 5, 2021, a surviving spouse who remarries upon attaining age 55 retains eligibility for DIC.  The date of remarriage can be any date, however benefits restored under PL 116-315 may not be paid for any period prior to January 5, 2021.
 
Furthermore, under PL 116-315, a surviving spouse who remarries upon attaining age 57 retains eligibility for MOHP benefits.

VII.i.2.E.1.k.  Handling Requests for Restoration of Benefits After Remarriage Under PL 116-315 and PL 108-183

  
Generally, DIC is discontinued when an individual ceases to be a surviving spouse due to remarriage.  However, there are exceptions to this rule.
 
Under PL 116-315, reinstatement of DIC is permissible for a surviving spouse that remarries upon attaining age 55, regardless of the date of marriage.  The provisions of 38 CFR 3.114(a) and 38 CFR 3.31 apply to the commencement of the period of payment.  The earliest possible effective date for reinstatement of DIC under PL 116-315 is January 5, 2021.
 
If a claimant was previously terminated or denied DIC due to a remarriage which occurred on or after attaining the age of 55, then benefits now entitled under PL 116-315 will be paid beginning the later of
  • one year prior to the date of claim, or
  • January 5, 2021.
Notes:
  • A surviving spouse had until December 16, 2004, to apply for reinstatement of benefits under PL 108-183, if they remarried
    • upon attaining 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 VII, Subpart i, 2.E.12.

VII.i.2.E.1.l.  Handling Requests for Continuation of Benefits

  
If a surviving spouse notifies VA of their remarriage, take the steps described in the table below.
 
Step
Action
1
2
Ask the survivor whether their current spouse is a Veteran (Block 12A 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 file number (Block 11C or 12B on VA Form 21-686c)
  • 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

  
November 20, 2024

VII.i.2.E.2.a.  Effect of the 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 themself out publicly as the spouse of that person.
 
If the claimant is living with another person and is holding themself 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 upon attaining age 55, they may retain eligibility for certain VA benefits under
    • PL 107-330, and
    • PL 116-315.
  • If a surviving spouse remarries upon attaining age 57, they may retain eligibility for certain VA benefits under PL 108-183.
References:  For more information on

VII.i.2.E.2.b.  Community’s Perspective of Claimant’s Marital Status

  
It is not necessary to establish that the claimant and their 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 their significant other held themselves out as a married couple.

VII.i.2.E.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 VII, Subpart i, 2.B.
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 themself 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).

VII.i.2.E.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 themself out openly to the public as the spouse of the other person.
Note:  Where there is no attempt to hold themself 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.

VII.i.2.E.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 VII, Subpart i, 2.B.

VII.i.2.E.2.f.  Lifting of Restrictions for DIC Claims Filed on or After October 1, 1998

  
The Veterans Benefits Act of 1998 (PL 105-178) 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 themself 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.

VII.i.2.E.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
  • their 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 X, Subpart v, 1.E.
3
Ask the Field Examiner to determine a specific date from which any inferred marital relationship commenced.

VII.i.2.E.2.h.  Information That May Disprove Inference of Marriage

  
Infer the marriage unless the claimant establishes by a preponderance of the evidence that they are
  • 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.

VII.i.2.E.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 X, Subpart v, 1.C.2.
 
The Pension Management Center Manager (PMCM) may delegate authority to a specified designee to approve the decision.

VII.i.2.E.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

VII.i.2.E.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

VII.i.2.E.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, Subpart i, 1.B.

VII.i.2.E.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).

VII.i.2.E.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:  For more information on a name change, see M21-1, Part VII, Subpart i, 2.E.1.e.

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

Introduction

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

Change Date

  
March 23, 2021

VII.i.2.E.4.a.  Developing for Child’s Entitlement After Surviving Spouse’s Remarriage or Death

  
If there are children entitled to benefits or increased benefits in their own right due to remarriage of a surviving spouse or death, take the following actions:
  • 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, if not of record or unknown, concerning
    • the remarriage
    • death
    • income for any children in custody and information of new custodian in pension cases, and/or
    • the whereabouts of the surviving spouse from persons having custody of the children.
References:  For more information on the

VII.i.2.E.4.b.  Determining Each Child’s Entitlement After Surviving Spouse’s Remarriage or Death

  
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.

VII.i.2.E.4.c.  Handling Apportioned Awards After Surviving Spouse’s Remarriage or Death

  
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 VII, Subpart i, 2.E.4.d.

VII.i.2.E.4.d.  Requesting Information in Pension or DIC Cases

  
Request the following information to be submitted within 60 days:
Use the table below to determine the actions to take based on whether the information is submitted within 60 days or one year.
 
If the information …
Then …
is not submitted within 60 days
suspend payments the first of the month following the month for which VA last paid the beneficiary.
is submitted within one year of request
take action, if otherwise in order and subject to action as described in M21-1, Part VII, Subpart i, 2.E.4 and 5, 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 IX, Subpart iii, 1.E.4.f.

VII.i.2.E.4.e.  Determining Children’s Entitlement in Old-Law or Section 306 Pension 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 IX, Subpart iii, 1.C.
VII.i.2.E.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 they were receiving as an apportionment.
 
An award of current-law pension may be more advantageous to the child, and they have the right to elect this benefit over Old-Law or Section 306 Pension.

VII.i.2.E.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

  
April 20, 2021

VII.i.2.E.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:  Entitlement continues to exist and no overpayment may be created, when a surviving spouse remarries after age
Reference:  For information on considering dependents in pension claims, see M21-1, Part IX, Subpart iii, 1.F.

VII.i.2.E.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.

VII.i.2.E.5.c.  Example:  Action Taken on a Remarried Surviving Spouse’s Award

  
Situation:  The surviving spouse
  • has three children in their custody
  • is receiving current-law pension of $1,397 per month, and
  • remarried May 15, 2020.
The first of the month following the month for which VA last paid the beneficiary is July 1, 2020.
 
Assume no income for the surviving spouse, stepparent, or any of the children.
 
Result:  From May 1, 2020 until July 1, 2020, withhold $812 from the surviving spouse’s award and pay $585 to account for the amount the children should have been paid during this time period.
 
The children’s awards
  • are effective July 1, 2020, and
  • result in three payments of $195 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.
Reference:  For information on authorizing an award under 38 U.S.C. 5502 and notifying the custodian, see M21-1, Part X, Subpart ii, 6.E.4.c.

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

Change Date

  
May 3, 2019

VII.i.2.E.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 VII, Subpart i, 2.E.4.
 
If additional information regarding appropriate action in Section 306 and Old-Law Pension cases after the remarriage of the surviving spouse is needed, e-mail Pension and Fiduciary (P&F) Service at VAVBAWAS/CO/P&F 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

VII.i.2.E.7.a.  Determining the 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.

VII.i.2.E.7.b.  Determining the 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 children, effective the first day of the month of remarriage, and
  • rate payable for a children only, effective the first day of the month following remarriage.

VII.i.2.E.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

  
December 16, 2021

VII.i.2.E.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 is terminated 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.
 
Exceptions:
  • PL 105-178 made it possible for a surviving spouse to establish DIC entitlement after termination of the remarriage.
  • PL 108-183 made it possible for a surviving spouse to remarry, upon attaining age 57, and establish DIC entitlement.
  • PL 116-315 made it possible for a surviving spouse to remarry, upon attaining age
    • 55, and retain DIC entitlement, and
    • 57, and retain MOHP entitlement.
References:  For more information on

VII.i.2.E.8.b.  Consideration of Termination Prior to November 1, 1990

  
PL 101-508 provides that a 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.  For more information, see M21-1, Part VII, Subpart i, 2.E.11.

VII.i.2.E.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.

VII.i.2.E.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.

VII.i.2.E.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.

VII.i.2.E.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, verify 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 a copy of the following as proof of termination
    • 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

VII.i.2.E.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 District Counsel for a legal opinion as to whether or not the marriage is void.
 
Note:  District Counsel makes the determination. No administrative decision is required.
 
Reference:  For information on jurisdiction over determinations, see M21-1, Part VII, Subpart i, 1.A.3.
4
If District Counsel determines that the remarriage is void, establish entitlement, if otherwise in order, effective the date
  • cohabitation ceased, or
  • 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

  
November 20, 2024

VII.i.2.E.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 District Counsel for an opinion as to the legal effect.

VII.i.2.E.10.b.  Fraudulent Annulments

  
A finding that an annulment was fraudulently obtained renders it invalid for VA purposes.
 
If the District Counsel opinion indicates that fraud was involved in obtaining an annulment, prepare a three-signature administrative decision using the format in M21-1, Part X, Subpart v, 1.C.2.  The issue is marital status of claimant.
 
The PMCM may delegate authority to a specified designee to approve the decision.

VII.i.2.E.10.c.  Judicial Decrees 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 Survivor Benefit Eligibility After Termination of Remarriage

Introduction

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

Change Date

  
December 16, 2021

VII.i.2.E.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).

VII.i.2.E.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.

VII.i.2.E.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.

VII.i.2.E.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.

VII.i.2.E.11.e.  Selection of EP

  
If the surviving spouse previously received DIC, use EP 130.
 

VII.i.2.E.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 the initial or supplemental 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
  • claim was received within one year of the law change.
VII.i.2.E.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 based on the surviving spouse’s 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).

VII.i.2.E.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.

VII.i.2.E.11.i.  Example 3:  Surviving Spouse’s Reinstated Eligibility for 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).

VII.i.2.E.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 themself out openly to the public as that person’s spouse.
  • Prior to November 30, 1999, VAOPGCPREC 13-1998 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.

VII.i.2.E.11.k.  Reinstatement of Eligibility for MOHP for a Surviving Spouse

  
Effective January 5, 2021, PL 116-315 made it possible for a surviving spouse to
  • qualify for the MOHP benefit, and
  • regain eligibility after termination of remarriage as described below.
Therefore, on or after January 5, 2021, eligibility is established in any case in which the remarriage of the surviving spouse is terminated by
  • death
  • divorce, or
  • annulment
Reference:  For more information on eligibility for benefits after remarriage under PL 116-315, see M21-1, Part VII, Subpart i, 2.E.1.j.

12.  Survivor Benefit 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

  
December 16, 2021

VII.i.2.E.12.a. Benefits for a Surviving Spouse Who Remarries Upon Attaining Age 57 

  
Under 38 CFR 3.55(a)(10), effective January 1, 2004, a surviving spouse who remarries upon attaining age 57 remains eligible for
  • DIC
  • VA home loans, and
  • VA educational benefits.
Important:
  • A surviving spouse who remarries upon attaining age 57, but before December 16, 2003, is eligible for DIC if the claim for DIC was received before December 16, 2004.
  • Under PL 116-315 a surviving spouse who remarries upon attaining age
    • 55, is eligible for DIC, or
    • 57, is eligible for MOHP.

References:  For more information on surviving spouse’s entitlement to

VII.i.2.E.12.b.  Full Concurrent Payment of DIC and SBP for Surviving Spouses Who Remarry Upon Attaining Age 57

  
Per Sharp et al. v. the United States, 580 F.3d 1234 (Fed. Cir. 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 upon attaining age 57.
 
References:  For more information on

VII.i.2.E.12.c.  Continuation of DIC Eligibility Based on Remarriage Upon Attaining Age 57

  
DIC eligibility will continue for any current DIC recipients who notify VA that they remarried upon attaining age 57.
 
Reference:  For more information on a surviving spouse who remarries upon attaining age 55, see M21-1, Part VII, Subpart i, 2.E.13.
 
 

VII.i.2.E.12.d.  Payment Date for Reinstatement of DIC

  
Do not reinstate DIC to a surviving spouse who remarried upon attaining age 57 effective earlier than January 1, 2004.  The payment date is subject to 38 CFR 3.31.
 
Note:  Surviving spouses who remarried upon attaining age 57, but before December 16, 2003, and whose claims are received on or after December 16, 2004, are not entitled to a reinstatement of benefits.
 
Exception:  Under PL 116-315, a surviving spouse who remarried upon attaining age 55 may have DIC reinstated effective January 5, 2021, or later, regardless of the date of remarriage.

VII.i.2.E.12.e.  Examples:  Claims for Reinstatement of DIC

  
Reinstatement of DIC entitlement may differ based on the applicability of PL 116-315.
 
Example 1
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:
  • The DIC claim was disallowed on February 19, 2008.
  • The surviving spouse remarried before December 16, 2003, but the claim for reinstatement was not received before December 16, 2004.
Example 2
Situation:  The same surviving spouse filed another claim to reinstate DIC on April 20, 2021.
 
Result:  The claim was granted under PL 116-315 with an effective date of January 5, 2021.
 
Note:  In example 1, per 38 CFR 3.55(9), the surviving spouse would still be eligible for medical care under 38 U.S.C. 1781 because they remarried upon attaining age 55.

VII.i.2.E.12.f.  Example:  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.

VII.i.2.E.12.g.  Example:  DIC Eligibility Continued

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

VII.i.2.E.12.h.  Selection of Appropriate EP

  
When processing a claim for reinstatement or continuation of DIC eligibility
based on remarriage upon attaining age 57, assign EP 130.

13.  DIC Eligibility Based on Remarriage upon Attaining Age 55

Introduction

  

Change Date

  
January 30, 2023

VII.i.2.E.13.a.  Benefits for a Surviving Spouse Who Remarries Upon Attaining Age 55

  
Under 38 CFR 3.55(a)(9)(iii), a surviving spouse who remarries upon attaining age 55 remains eligible for DIC benefits.
 
A surviving spouse who previously lost eligibility to DIC due to a remarriage occurring between the ages of 55 and 57, would now be eligible to have the benefit reinstated effective January 5, 2021.
 
DIC eligibility would continue for any current DIC recipients who notify VA that they remarried upon attaining age 55.  An example of when benefits may not be continuously paid can be found in M21-1 Part VII, Subpart i, 2.E.13.d.

VII.i.2.E.13.b.  Payment Date for Reinstatement of DIC

  
Do not reinstate or apply continuous payment of DIC to a surviving spouse who remarried upon attaining age 55, but before age 57, effective earlier than January 5, 2021.  The payment date is subject to PL 116-315.

VII.i.2.E.13.c.  Example:  Claim for Reinstatement of DIC Disallowed

  
Situation:  A surviving spouse’s DIC was discontinued on July 1, 2020, due to remarriage on May 1, 2020, at age 54.
 
The surviving spouse’s claim for reinstatement of DIC was received on November 1, 2020.
 
Result:  Disallow the DIC claim.  The surviving spouse remarried at age 54.

VII.i.2.E.13.d.  Example:  DIC Eligibility Not Continuously Paid

  
Situation:  A surviving spouse is in receipt of DIC.
 
In March 2020, the surviving spouse reported to VA that they had remarried on February 14, 2020, at the age of 55.
 
Result:  Because the surviving spouse remarried upon attaining age 55, but before January 5, 2021, terminate entitlement to DIC effective February 14, 2020.  Reinstate DIC benefits effective January 5, 2021.

VII.i.2.E.13.e.  Selection of Appropriate EP

  
When processing a claim for reinstatement or continuation of DIC eligibility
based on remarriage upon attaining age 55, assign EP 130.

VII.i.2.E.13.f.  Full Concurrent Payment of DIC and SBP for Surviving Spouses Who Remarry Upon Attaining Age 55

  
Per 38 U.S.C. 1311(e), there is no bar to full concurrent payment of SBP and the basic DIC rate when a surviving spouse is entitled to DIC by virtue of having remarried upon attaining age 55.
 
References:  For more information on