My Spouse Was a Servicemember. Am I Entitled to Survivors' Benefits?

Posted by Allison Sullivan on Oct 5, 2016 10:00:00 AM

girl-672254_640.jpgTo lose a loved one is always a tragedy. For the spouse or family members of a military servicemember, that tragedy can be compounded by many different factors — whether they died during combat or deployment, after their return, or even years or decades later on.

Family members may be left wondering if they'll have access to any benefits to help them navigate the difficult path after their loved one has died. One of the most common questions we hear is from the spouses of recently deceased servicemembers, wondering if they will be able to access the benefits due after their loved one's service. We have the answer below.

Yes, There Are Benefits For Surviving Family Members

The Department of Defense and Veterans' Affairs do indeed have certain benefits in place that spouses of deceased servicemembers can get access to. There a few different types of benefits available, so we'll take a brief look at which benefits might be right for you.

Lump Sum Death Gratuity

Did your spouse or family member die while on active duty? If so, you may be entitled to a tax free lump sum payment from the Department of Defense. The service member themselves should choose one or more people to receive and share this payment in case of their death. If any portion of the payment isn't designated for a specific person or people, living survivors will receive that portion. Generally, this benefit is paid out to immediate family members — spouses, children, parents, or even siblings, if designated.

Earned Pay and Allowances

Beneficiaries of the service member may also have access to any arned pay or allowances that exist at the time of death. If the servicemember failed to choose beneficiaries, the money will be paid out to family survivors in a very specific order — first off, the spouse, then children in equal shares, then parents, and finally, a legal representative of the estate.

DIC (Dependency and Indemnity Compensation)

DIC is a benefit available to survivors that is paid out monthly. In order to be eligible for this benefit, the servicemember must have died either on active duty or from service-related disabilities. This benefit, unlike the previous two, is actually provided through Veterans' Affairs. The program is based on need, and so the VA calculates whether you are entitled to this benefit based on your household needs. For a surviving spouse to be eligible, one of the following must be true:

  • Servicemember and spouse were married before Jan. 1, 1957
  • The spouse was married to a service member who died on active duty, active duty for training, or inactive duty training
  • The two were married within 15 years of the veteran being discharged from military service with service-related disability that caused his or her death
  • Was married to the veteran for at least one year
  • The surviving spouse had a child with the veteran

The surviving spouse must have cohabitated with the veteran continuously from marriage until the veteran’s death, or if separated, was not at fault for the separation.  Also, the surviving spouse must not have remarried; however, there is an exception for survivors who remarry after age 57 and limited exceptions for others.

Children of servicemembers may also be eligible for this benefit, as long as one of the following is true:

  • The child is unmarried and is under the age of 18, or between the ages of 18 and 23 and attending school; OR
  • This child became permanently incapable of self-support prior to age 18

Surviving parents (including biological, adoptive, and foster parents) may also be eligible for this benefit. The VA will determine eligibility based on the income of the parents.

Veterans Affairs Survivor's Pension

This benefit is based on need.  The VA survivor's pension is available to survivors of deceased servicemembers if all of the following is true

  • The surviving spouse has not remarried, or the survivor is an unmarried child of the veteran, or is a qualified surviving parent; AND
  • The veteran served a certain amount of active-duty days; AND 
  • At least one of those active-duty days was served during a period of war; AND
  • The veteran was not dishonorably discharged; AND
  • The survivor's income is below the limit set by law.  The survivor's income calculation can be reduced by certain medical expenses.

The VA denies survivor’s pension due to excessive income more than any other reason.  Often the medical expenses are denied by the VA when they actually qualify as a valid reduction.  An experienced attorney can help you determine if you medical expenses qualify.

Survivor Benefit Plan

Did the servicemember die after retirement? A surviving spouse or child may be entitled to payments under the Survivor Benefit Plan, or SBP. This is a program the servicemember is required to enroll in, and will need to be enrolled at the time of retirement. Automatic enrollment happens for servicemembers who are married. The amount of pay will be based on a percentage of the service member's retirement pay. A retiree is automatically enrolled if married. The amount is based on a percentage of the service member's retirement pay. The amount will be reduced by any payment received under the DIC. However, if there is an offset for receipt of DIC the survivor may be entitled to a return of SBP premiums paid by the retiree.

What To Ask Your Attorney

It's important to contact a legal representative before pursuing benefit payments, so that you have someone working alongside you to ensure your individual rights as the -surviving spouse, child, or family member of a deceased servicemember are protected. There are a few questions we suggest you ask during your consultation, to give you a better sense of the way filing a claim for survivor benefits may go:

  • "If my spouse was discharged before his or her death (whether honorably or dishonorably), how will that affect benefit payments?"
  • For parents: "My son or daughter passed away from an injury received during their time serving the military. How can I receive compensation? Does my income matter?"
  • "What are the changes in survivor benefits if the servicemember had children from more than one marriage?"

Be sure to bring any documentation regarding your spouse's time in the service, their death (if caused by a service-related injury or disability), and documentation regarding marriage, any divorces, and children with you to your consultation.

Looking for Legal Representation? Call Bluestein Attorneys Today

Our SC Vet Advocates team is made up of attorneys who have served in the military, so we understand the ways that military life is truly unique. If you're a spouse or surviving family member of a deceased veteran, we would be happy to sit down with you and discuss your situation and help you decide on what steps you may need to take next during this difficult time. To request your FREE consultation, give us a call at (803) 779-7599 or contact us online at any time!

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Topics: Veterans Affairs