Benefits Issue after death of partner

Hi Jim,

My wonderful veteran partner of 12 years recently passed away in the hospital from "instant cancer". I know that sounds crazy, but true. Despite being diagnosed with T2 Diabetes and PTSD he was given a clean bill of health by his Dr. @ the VA about 6 weeks prior. He died within 10 days of being admitted due to renal failure and adenocarcinoma, but also had been diagnosed with two other cancers while in hospital.

He kept asking me "how do a healthy man die" like the Bruce Lee admirer that he was.

That being said, this mail is really about his former spouse, who after 20 years of estrangement contacted my husband on his deathbed wanting to know if she could fly out to Washington to visit him. . . .he politely declined. After he died she called the Funeral Home several times in an attempt to have his remains shipped to the Midwest for burial. Out of money, she then wanted him cremated, against his wishes. She told the Director she was his lawful spouse. He informed her that we had a will, and I am the Appointed Representative.

Here is my question. For the sake of argument, let's say he THOUGHT he was legally divorced, but wasn't in reality. As his confidante, he told me the details of the end of the marriage, which involved a final act of violence against him as he walked out the door. Do you think she stands a chance of claiming status of "surviving spouse" for VA purposes of receiving benefits under this scenario?

I am of the opinion, due to all my husband told me about her, that she is a scam artist. Out of respect for his memory, I would do anything within my power to make sure she is barred from receiving anything from his Military service. Nor would I want to get in trouble, if perchance she really is still legally married to him, despite her seeming lack of a "valid" claim based on the long estrangement and other detailed factors his parents have told me.

I am contemplating a claim of my own for Death Benefit. From what I've read, if a spouse is not aware of an "impediment" to marriage, the VA has a procedure to "deem valid" a marriage that otherwise would not be. It sounds good on paper, but in reality, how many cases like this actually are resolved fairly? If you know.

I am trying to wade through the uncharted waters of the VA's confusing mass of forms and rules within rules within rules. . .I have called American Legion, the only VSO in my locale and have yet to hear back. I am starting to feel lost in the process. Yours is the first website that I've enquired of. Don't know if I need a lawyer or. . .?

He was a Vietnam veteran with two claims in for Service-connected Disability. Second claim has neither been approved or denied. Had received Non-service Improved Pension while waiting.

Thanks in advance for any answers, advice or direction.

Reply:

Yours is a very complex situation. VA may recognize common-law marriages if you reside in a state that allows and defines a common-law marriage. How you could prove a common-law arrangement after he has passed on will be a challenge. That usually requires the veterans input and statement. Your claims to dependency could easily be seen as self serving as you would be the beneficiary. Without his input and agreement that yours is a common-law marriage, you will have quite a burden to prove that you were married to him.

I'm not at all sure of what sort of benefits any survivor would be eligible for. If a veteran dies of a service connected condition the surviving spouse may be eligible for the DIC benefit. That's just over $1000.00 per month this year. But you tell me he died of "instant cancer" and of course, there is no such disease. If his cancer wasn't service connected, there wouldn't be a DIC benefit. VA may pay for some of his burial expenses but that's about all.

You can read about how to establish a common-law marriage by clicking here http://www.benefits.va.gov/WARMS/docs/admin21/m21_1/mr/part3/subptiii/ch05/pt03_sp03_ch05_secc.doc

Of course, if your veteran wasn't divorced from his previous spouse, she may have a great deal of legal support by law.

Your comments that he had diabetes and PTSD but he received "Non-service Improved Pension" is worrisome to me. Was he just getting around to claiming those diseases as service connected?

If he had claims in process when he died, a surviving dependent (usually the spouse) is allowed to act on his behalf to complete the claims. That takes us right back to the original problem...are you his spouse? If you can't show that you are, you probably have no legal standing.

Depending on what sort of cancer he died from, there would almost certainly be benefits available for a surviving dependent spouse.

No, you don't need a lawyer. If you wanted to follow through on this, the first thing to do is to write a brief and formal letter to VA and declare (1) that you wish to continue his existing claims as his surviving dependent and (2) that you are beginning the process to prove your status as the surviving spouse.

All communications with VA must be in writing and delivered with certified mail. Please read http://www.vawatchdog.org/Letter_Templates.html to learn how to properly communicate with VA.

You should get a copy of the death certificate. If he died of a cancer caused by agent orange exposure, the surviving dependent is likely to be eligible for DIC.

If nobody is eligible to represent the claims he had filed, they will be closed.