YOUR FURTHER QUESTION:
But the full SBP would be taxable as it is now but only worse?FURTHER ANSWER:
The SBP payments (whatever the amount may be) is considered at taxable income. DIC benefits are tax-free.YOUR FURTHER QUESTION:
Do i get this money for the rest of my life?FURTHER ANSWER:
Yes, it would appear that you get this money for the rest of your life.YOUR FURTHER QUESTION:
Seems funny the military will pay a widow more money to marry......odd isn't it?FURTHER ANSWER:
Yes, it is rather odd, at least at first blush. But this is the result of the modern approach employed by judges when undertaking “statutory construction.” There was a time, years ago, when judges construed, interpreted and applied statutes by giving primary consideration to what the judges viewed as the intent of the legislature, even if the judges’ determination of legislative intent was a bit at variance with the exact wording of the statutory enactment. This sometimes resulted in judicial decisions that appeared to be at odds with the actual text of the statute under consideration. Lawmakes complained about “judicial activism,” criticizing judges who were “legislating from the bench.” The push was made to get rid of those “liberal activist judges” and replace them with conserative judges who knew their place and would use “judicial restraint” to simply “apply the law as written by the lawmakers.” And that appears to be the trend that has swept the country.
The net result is that nowadays, when judges are called on to construe and interpret a statute, the philosophy of “judicial restraint” compels judges to look in the first instance to only the text and context of the statute. If the words used are clear and unabiguous, the judges will apply the law as written, without further consideraiton of legislative intent, even if this produces an unusual, or even downwright stupid, result. Under this philosophy, it is not the role of the courts to subjectively question the intent or wisdom (of lack thereof) of the legislature. In sum, to paraphrase what the Mad Hatter said to Alice, “the statute says what it means and means what it says.” Period and end of discussion.
The decison of the U.S. Couirt of Appeals in Sharp v. U.S. is a good example of this modern approach to judicial decision-making when it involves the application of statutes enacted by Congress.
On August 26, 2009, the US Court of Appeals for the Federal Circuit, in the case of Sharp v. United States, 580 F3d 1234 (DC Cir, 2009), held that the SBP-DIC “offset” as applied by the Department of Defense, effectively reducing SBP benefits for surviving spouses who also qualify for DIC benefits, is in fact not authorized by the controlling congressional enactments, at least not as to otherwise eligible surviving spouses who remarry at age 57 or later.
The lead plaintiff in the case, Patricia Sharp, is the surviving spouse of Brig. Gen. Richard H. Sharp (USA), who died in 1983 while on active duty. At the time of his death, he and Mrs. Sharp had been married for 23 years. As his surviving spouse, Mrs. Sharp became eligible to receive both SBP benefits and DIC benefits, with the former (SBP) being reduced (“offset”) to the extent of the latter (DIC). Subsequently, on November 25, 2000, at the age of 60, Mrs. Sharp remarried. As a result of her remarriage, she lost her DIC eligibility in its entirety (but did regain the full amount of her SBP entitlement). This was in accord with the law in effect at the time of her remarriage in 2000 that barred surviving spouses from continued receipt of DIC benefits if and when they remarried, regardless of age at time of remarriage.
But the “DIC marriage penalty” was changed by Congress with the enactment of the Veterans Benefits
Act of 2003, Pub L 108-183. Specifically, section 101(a) of the act amended 38 USC § 103(d)(2)(B) so as to eliminate the automatic loss of DIC eligibility upon remarriage, but only if the remarriage occurred at age 57 or thereafter. Further, section 101(e) of the act included a “grandmother provision” that restored DIC benefits to those qualifying surviving spouses (such as Mrs. Sharp) who had remarried at age 57 or older prior to December 16, 2003 (the date the new law took effect).
Thus, under the revised law, Mrs. Sharp was entitled to have her DIC benefits restored, which is what then occurred. But when that happened, DOD then applied the “SBP-DIC offset” and reduced Mrs. Sharp's SBP benefit by the amount of her restored DIC benefit. DOD’s action was taken pursuant to 10 USC § 1450(c)(1), the provision of the SBP law that mandates the dollar-for-dollar reduction of SBP payments for a surviving spouse who is also eligible for DIC benefits. It was DOD’s position that 10 USC § 1450(c)(1) was applicable and controlling in Mrs. Sharp’s circumstances.
Not being happy with DOD’s reduction of her SBP entitlement, Mrs. Sharp (along with two other similarly situated widows) then sued the government in 2007. She argued that the particular wording of section 101(b) of the Veterans Benefits Act of 2003 as enacted by Congress and codified as 38 USC § 1311(e), effectively barred DOD from applying to her (and all other similarly situated surviving spouses) the dollar-for-dollar reduction otherwise mandated by 10 USC § 1450(c)(1). Consequently, said Mrs. Sharp, widows who remarry after age 57 are entitled to receive BOTH Survivor Benefit Plan
(SBP) annuity payments from DOD and Dependency and Indemnity Compensation (DIC) benefits from the VA, without any offset between the two.
Specifically, citing the text of the Veterans Benefits Act of 2003, Mrs. Sharp noted that the act not only removed remarriage as a DIC eligibility disqualification factor, at least if the remarriage occurs at age 57 or later, but also created a new provision of law, codified as 38 USC § 1311(e), that declared that, “notwithstanding any other provision of law, no reduction in benefits under such other provision of law shall be made by reason of such individual’s eligibility for [DIC] benefits under this section.” Mrs. Sharp correctly pointed out that 10 USC § 1450(c)(1) is a “provision of law” that, if applied to surviving spouses in her situation (being eligible for DIC benefits even though remarried), would result in a reduction of her SBP annuity.
Mrs. Sharp then argued that the wording of 38 USC § 1311(e) effectively declares the intent of Congress, “notwithstanding any other provision of law,” that remarried spouses -- at least those who remarry at age 57 or later -- who are simultaneously eligible for other benefits (such as SBP benefits) inuring to surviving spouses of veterans not suffer a reduction in those benefits due to the DIC payments. According to Mrs. Sharp, 38 USC § 1311(e) means exactly what it says: no reduction notwithstanding any other provision of law. Consequently, according to Mrs. Sharp, 38 USC § 1311(e) effectively bars DOD from using 10 USC § 1450(c)(1) as a basis for reducing her SBP annuity entitlement.
In response, DOD urged the Court of Appeals to determine the intent of Congress by considering the legislative history leading up to the enactment of the Veterans Benefits Act of 2003. DOD argued that Congress never intended the law to have the result urged by Mrs. Sharp. The court rejected DOD’s “unconvincing argument,” noting that the text of 38 USC § 1311(e) is clear and unambiguous. Said the Court of Appeals:
“To determine Congress' intent, we use the traditional tools of statutory construction, beginning with the text of the statute. Where the intent is unambiguously expressed by the plain meaning of the statutory text, we give effect to that clear language without rendering any portion of it meaningless. Here, Congress' intention to supersede all other laws (except a provision not at issue in this case), and prevent a decrease in some other benefit payment as a result of section 1311(e)'s restoration of DIC payments to surviving spouses who remarry after age 57, is plain on the face of the statute.”
Net result: DOD was ordered by the court to commence acting in conformance with the law as enacted by Congress (which DOD had erroneously not been doing), thereby restoring to Mrs. Sharp the SBP reduction that it had been applying in her case. Mrs. Sharp, having remarried after attaining age 57, was thus allowed to retain her full DIC benefit (notwithstanding her remarriage) and also receive her full and unreduced SBP benefit (notwithstanding her receipt of the DIC benefit).
Full text of court decision in Sharp v US
is online at:http://scholar.google.com/scholar_case?case=5422111345562531106
Also see my (now-revised) article on this topic athttp://ldgorin.justia.net/article_46-1510079.html
All the best.
Edited by Lawrence D. Gorin on 2/7/2010 at 11:12 PM EST