At the Law Office of Bryan Fagan, we appreciate the attention that you have been giving us as we continue to post blogs and update our YouTube channel with content regarding estate planning. We hope that the knowledge we have been providing is helpful and we have been trying to focus on subject areas that our experienced attorneys receive with great frequency from potential clients who attend free-of-charge consultations at our office. From these consultations we gather that there are several of you out there who have questions about how to plan you are estate as a veteran.
In today’s blog post from the Law Office of Bryan Fagan we are going to discuss some of the most essential and fundamental things that you as a veteran should be thinking about as far as how your spouse can qualify for military benefits if you pass away. The answer to this question is that it depends on several factors which may be unique to your situation. The first of those factors is whether you were honorably discharged from the military. If you are a military spouse, then this would be an essential piece of information that you would need to look for before you can determine whether military benefits will be available to you after your spouse passes away.
In essence, this entire question depends upon the status of you or your spouse when you leave the military. Being able to say that you were honorably discharged will give your spouse a leg up when it comes to being eligible for military benefits after you pass away or leave the military. The other important factor to consider is the length of your marriage. How long the two of you have been married or how long the two of you are currently married will also play a role in this discussion. In many cases, your spouse must have served at least 20 years in the military with at least 10 of those years being married to you. This is also a subject that comes up frequently in the world of Texas family law as far as being able to divide retirement benefits from the military in a divorce.
There are also different circumstances involved when you must consider that if you have children then this may play a role in you being eligible for benefits after the marriage has come to an end. When I talk about children, I specifically mean children who are under the age of 18. Your minor children will have the ability to retain health benefits and things of that nature after a divorce no matter what your status is as a divorced spouse. While it may be unlikely that you have minor children at home while you are doing estate planning it is possible that this is the case.
Types of military benefits during estate planning
There are a variety of benefits available to surviving family members of deceased veterans. Since there are death pensions related to military service that you as a military widow or widower could receive. It is not enough to look at military estate planning from the perspective of being curious only about receiving your spouse’s military benefits after he or she passes away. Rather, one of the most important factors for you to look to at this time would be to consider whether there are additional benefits that may be relevant to your situation. There are things like funeral and burial benefits that you can receive outside of what the benefits are that you would have been able to continue to receive because of being married to a military veteran.
One important thing to take note of is that survivors’ benefits do not compensate dependents or surviving spouses at the same rate that the veteran received. You should be sure to investigate with an experienced estate planning attorney dependents and indemnity compensation or DIC for short. This is a monthly benefit through the Veteran’s Administration which can be paid to a surviving spouse, a minor dependent child, or even a dependent parent of a veteran who died of causes that are related to their military service.
Additionally, certain circumstances may lead the dependency and indemnity compensation amount rate to be exceeded. To qualify for the dependency and indemnity compensation rate, one of the following conditions must be true about the veteran. First, your veteran family member or spouse must have died while on active-duty training or inactive-duty training. Next, the service member must have passed away due to a service-connected disability or condition. The third condition is that the veteran’s death may not have been necessarily service-related but that he or she was entitled to receive disability compensation for a 100% disabling condition.
What is a VA survivors’ pension?
A VA survivors’ pension is a monthly benefit through the Veterans Administration, which is paid to surviving spouses and unmarried, dependent children of wartime veterans. To qualify for this benefit, the surviving dependent must not earn an income higher than the limit set forth by Congress. Your yearly family income and your assets must be less than this amount to receive this survivor’s pension. The actual benefit paid to you would be the difference between your income and your assets and the annual pension limit for surviving spousal income.
Let’s suppose that you or your spouse passed away while you were in the middle of trying to apply for benefits. In that case, there may be an accrued benefit as a result of military service which can be awarded. The way this works is that you as a surviving spouse will be substituted into the place of their deceased veteran spouse on that claim or application for benefits. You would then be able to pick up where your spouse left off and continue your application. A common situation involves a veteran attempting to increase their VA disability rating but unfortunately passing away while that attempt is ongoing. In that case, if your deceased spouse is given the increased disability rating later then you would receive the increased benefits which are made up of retroactive pay that your spouse would have received had she or he not passed away.
Another important consideration is regarding educational assistance for surviving spouses and their dependents. This educational assistance program comes as part of the GI Bill and has a goal to offer education and training to eligible survivors and their dependents of veterans. On top of that, there is a civilian health and medical program as part of the Department of Veterans Affairs. In this program, the Veteran’s Administration will share in the costs of certain healthcare services that can be provided to you and your children. This program will also supply you with a burial allowance to help cover the expenses associated with the burial and funeral of your deceased spouse as well as any transportation needed. Various forms can be located online from the Veteran’s Administration that will assist you in beginning this process. Important for estate planning, these are all tax-free benefits, though you should check with an experienced accountant or other tax preparer to verify any specific conditions that may be relevant for you and your family.
More on death benefits from the military
Death indemnity compensation, more generally referred to as death benefits, is an important consideration when planning your estate or preparing an end-of-life plan. These benefits can significantly impact any surviving dependent of a military veteran who usually ends up being a military widow or widower or even a child with a special need or disability. Even if you are not married, your parent who depends upon you for income and a livelihood can benefit from death indemnity compensation.
What you, your spouse, and your family will need to be concerned with when it comes to estate planning around this subject is: was the cause of death of the veteran related to their military service? This could be that a service-connected condition led to your death or that of your spouse. There are ways to be able to show that your spouse died while on active duty or that the veteran was 100% permanent and disabled and was receiving compensation for 10 years or more at the time of their death. Then, if none of these two issues apply to you, you ought to show that your spouse’s condition was service-connected and was a substantial contributor to his or her death.
When you are dealing with issues like this as far as appealing or trying to assert rights under VA disability programs it can get to be quite complicated for one side to argue. You may not have the experience or knowledge when it comes to asserting that any of these three conditions apply. Therefore, you may be losing out on a benefit that you otherwise should have received. In that case, it may be worth your while to investigate hiring an attorney who works in the area of veterans benefits in order so that you can work towards receiving care and benefits through the military that you and your veteran spouse earned through his or her years of service.
What it Means to Plan Your Estate as a Veteran
Without a doubt, as a veteran or spouse of a veteran, your family has sacrificed a substantial amount for our country. Many veterans have endured injury, sickness, and aggravation because of their service. As part of the benefits package that comes with serving our country, various programs exist that can help veterans be able to retire more soundly, receive the health care that they need, and care for their families even after they have passed away. Frankly, this is the least that we could do as Americans to be able to support those who have supported our country through their service. We are forever indebted to veterans, and we thank you for your sacrifice.
However, you probably did not need me to tell you that it can be difficult to take advantage of some of these programs given the governmental red tape and challenges of sorting through the bureaucracy in both the Veterans Administration as well as other government agencies. Even finding out about these programs and benefits can be a challenge for even the most astute veteran in their family. At the Law Office of Bryan Fagan, our estate planning attorneys help veterans and their families think about their future and plan for what’s ahead. We can take you step by step through the process of helping to organize pension benefits and prepare for the possibility of receiving care through an assisted living facility and other services for veterans.
One of the tools that our office can work with you on is to create an irrevocable trust to protect your assets. What an irrevocable trust can do is to set up an arrangement for your property to be protected but cannot be changed or revoked in any way. The irrevocable trust would remove property from your estate and provide the kind of protection that you may need to your surviving spouse and descendants. Programs through the government like Medicaid have a five-year look-back period. This means that Medicaid will look back five years to see what you have done with your property to determine eligibility. On the other hand, the Veteran’s Administration does not look back quite as far as Medicaid does.
Our office can work with you to determine if there is a need to include special needs language in your trust. This language can support any kind of governmental benefits that you may be able to receive or could be eligible for. Examples of these types of benefits are any through the Veteran’s Administration. Not putting yourself in a position where your ability to receive these benefits renders you ineligible for other programs is a key part of this discussion. We would work with you to make sure that you can take advantage of as many programs as possible without losing eligibility. For instance, being able to receive a benefit that covers a certain amount of home care per week is a good thing. However, you may be in a position where you require more help at home than you can receive and any special needs language in your trust would allow the trustee to be able to withdraw sufficient money from your trust each month to cover the additional hours of care that you may need.
When it comes to making decisions that can affect your livelihood in that of your family you should be sure that you are making the right decision. We can help you determine the right kind of trust for you and your circumstances so that you do not doubt that you are making the right decision. And the more well-informed you are leading up to your decision-making process the better position your family will be in now and in the future. Remember that once property is transferred into the trust you are no longer the owner of it. Rather, the trust would own the property. This makes selling that property more complex and is a factor in determining whether you want to create the trust or not.
Final thoughts on planning your estate as a veteran
Estate planning, no matter who you are, is a balancing act. There are always competing interests as well as complex subject matter to be discussed. This is even more true, perhaps, for a veteran. The simple truth is that a veteran has more in the way of government benefits, program eligibility rules, and things of this nature to keep track of than a civilian would. As a result, we need to be able to balance those interests so that we can understand how best to proceed in the circumstances that we may be facing. It doesn’t matter how old you are or how long it has taken you to come to this point. All that matters is that if you are in a position where you would like to plan your estate then you must be able to understand what your decisions mean for you and your family.
This is exactly why working with an experienced estate planning attorney is so critical. Choosing to forego representation when it comes to planning out your golden years could mean potentially failing to take advantage of any number of opportunities that you have earned through your military service. This is the last thing you want to do and the attorneys with the Law Office of Bryan Fagan are here to help you.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed estate planning attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas estate planning as well as how your family may be impacted by the filing of aprobate or guardianship case.
Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.
