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Lawrence D. Gorin
Lawrence D. Gorin, Lawyer
Category: Military Law
Satisfied Customers: 1513
Experience:  Military & Family Law. 30+ years experience. USFSPA pension division expertise.
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I am a widow of 10 years and receiving SBP and DIC . My understanding

Customer Question

I am a widow of 10 years and receiving SBP and DIC . My understanding was that this would be the case for the rest of my life if I didn't remarry until after the age of 57. My understanding was I'd lose DEERS (which is base priviledges) and Tricare. My understanding is once I remarry after 57 and become uneligible for Tricare that I would become eligible for Champusva. Now I am reading articles that state widows and widowers who do not marry after 57 years old lose-help me understand -
http://www.tampabay.com/news/military/veterans/vets-spouses-lose-a-death-benefit-by-staying-single/1051849
In a seemingly absurd quirk of federal laws on death benefits, up to 54,000 military widows and widowers around the nation are losing up to $13,000 a year in death benefits unless they take another walk down the aisle after age 57.
A federal appeals court in a recent decision made note of the unusual condition, saying, "Perhaps Congress intended to encourage marriage for older surviving spouses.
Submitted: 4 years ago.
Category: Military Law
Expert:  Lawrence D. Gorin replied 4 years ago.
Yes. This gets a little confusing. Give me a few minutes and I'll give you the answer. Thanks.
In the meantime, take a look at the following link:

Military: SBP-DIC Offset No Longer Applies If Remarriage Occurs At Age 57 Or Older
http://ldgorin.justia.net/article_46-1510079.html


Edited by Lawrence D. Gorin on 2/6/2010 at 8:51 PM EST
Customer: replied 4 years ago.
I have read the information you have sent. It is confusing . I do get SBP and DIC and I believe I was told at the time that my SBP was reduced because of me getting DIC...I get the $1154 being talked about in the article and I get $1373.10 from the SBP. If I do remarry and it says I'd no longer get reduced monies, I don't know how much that would be...if I remarry I lose base priviledges, tricare...but can have champusva, or champus not sure which...but also lose my husbands social security monies at age 60-My question also is if I decide to "stay single" will i continue getting what i am getting now or does any of this go away? Bottem line-is it better to get married or stay single. I do not want to lose the SBP or DIC at all. Thank you for your help
Expert:  Lawrence D. Gorin replied 4 years ago.
ANSWER:
There may be a bit of a misunderstanding here. I am assuming that you are an unremarried “dual-eligible” surviving spouse. That is, you qualify for both DIC benefits from the VA and you are also a surviving spouse beneficiary under DOD’s SBP insurance program. As such, however, the SBP amount is being reduced (“offset) on a dollar-for-dollar basis against the amount of your DIC benefit.

HOWEVER, as a result of an August 26, 2009, decision of the US Court of Appeals, DOD has changed its policy. From now on, the dollar-for-dollar SBP-DIC “offset” will no longer apply to surviving spouses who otherwise qualify for both DIC and SBP benefits AND who remarry at age 57 or later. Consequently, for surviving spouses whose SBP annuity has been previously reduced due to receipt of DIC benefits, getting married at age 57 or later will result in receipt of the full unreduced amount of the SBP benefit as well as the full DIC benefit.

In sum, a surviving spouse who is eligible to receive both DIC and SBP benefits will now be provided with a financial reward from DOD for remarrying as soon as possible upon attaining age 57. For surviving spouses in this particular group, it literally pays to get married. Indeed, using the 2009 DIC payment rate, the qualifying surviving spouse who remarries at age 57 or older will now be effectively paid $1,154 per month by DOD for doing so.

But the financial reward accorded to dual-eligible surviving spouses who remarry at age 57 or older (and thus retain their DIC benefit and regain their full and unreduced SBP benefit) is not accorded to dual-eligible surviving spouses who (perhaps for moral, religious, ethical or other personal reasons) choose not to remarry and who thus continue to be subjected to the SBP-DIC offset. In effect, the financial boon for the former class (widows who remarry at age 57 or older) is a financial bust of the latter class (those who choose not to remarry). Although the servicemember paid for both benefits (SBP with premiums and DIC with his life), the only way his widow can collect the full amount of both benefits is to do something she perhaps finds disloyal to her original vows of marriage and the memory of her deceased husband. The law that allows this to occur is arguably unfair, unreasonable, illogical and irrational, but nonetheless perfectly legal.

Thus, the situation you are describing (not remarrying at age 57 or later) results in a “loss” of benefits only in the sense of not receiving the full amount of the SBP annuity that under the revised DOD policy now becomes payable do those dual-eligible widows who DO remarry at age 57 or older.

Full story at the following website:
MILITARY: SBP-DIC OFFSET NO LONGER APPLIES IF REMARRIAGE OCCURS AT AGE 57 OR OLDER
http://ldgorin.justia.net/article_46-1510079.html

Now, moving on..... as to health care benefits.......

Yes, your are correct. If you remarry, you will lose TRICARE eligibility (unless the marriage is to another TRICARE-eligible sponsor, in which case your TRICARE eligibility continues through your new spouse sponsor). Also, given that you are not eligible for CHAMPVA so long as you remain TRICARE-eligible, it appears that you have to first lose your TRICARE eligibility (as occurs upon your remarriage) before can submit your application for CHAMPVA coverage.

Upon loss of TRICARE eligibility, you will automatically receive a “certificate of creditable coverage.” The certificate of creditable coverage is a document that serves as evidence of prior health care coverage under TRICARE, so that you cannot be excluded from a new health plan for pre-existing conditions.

TRICARE and CHAMPVA are both federal health care programs but should not be confused with one another. TRICARE is administered by the Department of Defense (DoD). CHAMPVA is administered by the Department of Veterans Affairs (DVA).

An individual who is eligible for TRICARE is not eligible for CHAMPVA. There are several classifications for CHAMPVA eligibility. One of them is that a veteran’s widow is eligible for CHAMPVA if the veteran died on active duty (and the widow is not otherwise eligible for TRICARE benefits).

It thus appear that you will be eligible for CHAMPVA once you are no longer eligible for TRICARE. So you apply for CHAMPVA when you are no longer eligible for TRICARE. CHAMPVA application form is online at:
http://www4.va.gov/VAFORMS/medical/pdf/vha-10-10d-fill.pdf

As for your remarriage: If you are eligible for CHAMPVA, it would end if you remarry PRIOR to age 55. BUT...... YOUR REMARRIAGE ON OR AFTER age 55 does NOT result in loss of CHAMPVA eligibility.

ELIGIBILITY: REMARRIAGE AT AGE 55 OR OLDER. In some cases, the surviving spouse of a qualified sponsor remains eligible for CHAMPVA even after remarriage.
Here are the rules:
----> If you remarried ON or AFTER February 4, 2003: -- You must have been 55 or older at the time you remarried.

----> If you remarried BEFORE February 4, 2003 -- You must meet all these qualifications:
  • You must have been age 55 or older at the time you remarried; AND.
  • You must apply for CHAMPVA no later than February 4, 2004; AND
  • You must not be eligible for TRICARE.

More info about CHAMPVA may be obtained from the VA via telephone at 1-800-733-8387.

Detailed info re CHAMPVA:
DANGEROUS URL REMOVED?p_faqid=1195&p_created=1256727773

http://www4.va.gov/hac/forbeneficiaries/champva/champva.asp

http://www4.va.gov/hac/forbeneficiaries/champva/apply.asp

Now, moving on......

All individuals who permanently lose TRICARE eligibility are eligible for temporary health care coverage through the Continued Health Care Benefit Program (CHCBP). CHCBP is not part of TRICARE, but provides similar benefits and operates under most of the rules of TRICARE Standard and Extra.

If you have lost your military health care coverage or will lose it soon, the Continued Health Care Benefit Program (CHCBP) can protect you in the interim between military health benefits and civilian health care. (This is particularly true if it turns out that you are eligible for CHAMPVA.)

CHCBP acts as a bridge between military health benefits and your new civilian health plan. CHCBP benefits are comparable to TRICARE Standard with the same benefits, providers and program rules. The main difference is that you pay premiums to participate. The premiums for this coverage are $933 per quarter for individuals and $1,996 per quarter for families.

You are not required to purchase this health care coverage. Participation in CHCBP is completely optional. However, enrollment in CHCBP may be in your best interest.

If you qualify and desire to purchase CHCBP coverage after losing your TRICARE eligibility, you MUST enroll in CHCBP within 60 days of losing your TRICARE eligibility. So time is of the essence.

More info about CHCBP at:
http://www.humana-military.com/south/bene/TRICAREPrograms/chcbp.asp
http://usmilitary.about.com/library/milinfo/blspousehealth.htm

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Lawrence D. Gorin, Lawyer
Category: Military Law
Satisfied Customers: 1513
Experience: Military & Family Law. 30+ years experience. USFSPA pension division expertise.
Lawrence D. Gorin and 2 other Military Law Specialists are ready to help you
Customer: replied 4 years ago.
I do qualify for both SPB and DIC.

1. If I don't remarry, what will I lose regarding SPB and DIC?
2. If I remarry , what will I lose besides DEERS and Tricare?

3. And if anything were to change for me wouldn't SPB or DIC contact me?
Expert:  Lawrence D. Gorin replied 4 years ago.
The law controlling the SBP program, which went into effect September 21, 1972, calls for reducing SBP payments by the amount the recipient receives in DIC benefits. 10 U.S.C. § 1450(c)(1) (2006) ("If . . . the surviving spouse . . . is also entitled to [DIC] under section 1311(a) of title 38, the surviving spouse . . . may be paid an annuity under this section, but only in the amount that the annuity otherwise payable under this section would exceed that compensation.").

I suspect that the full, “unreduced” amount of your SBP entitlement is $2,527.10, but is being “offset” by the $1,154 DIC payment, resulting in a reduced SBP payment of $1,373.10. In essence, you still receive $2,527.10, but $1,154 is in the form of the DIC benefit, with the other $1,373.10 being the “reduced” SBP benefit.

Under the rather strange result arising from the court decision in Sharp v. U.S., if you were to remarry at age 57 or older, the amount of the reduction of your SBP payment (presently a reduction of $1,154 per month) woiuld be RESTORED and you would then receive the FULL SBP payment ($2,527.10) PLUS the full DIC payment (presently $1,154 per month), for a total of $3681.10.

As of commissary and exchange benefits: Unfortunately, upon your remarriage, you will lose your commissary and exchange benefits.
Customer: replied 4 years ago.
Wow....but the full sbp would be taxable as it is now but only worse?

Do i get this money for the rest of my life?

Seems funny the military will pay a widow more money to marry......odd isn't it?
Expert:  Lawrence D. Gorin replied 4 years ago.
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
http://www.cafc.uscourts.gov/opinions/08-5105.pdf

Also see my (now-revised) article on this topic at
http://ldgorin.justia.net/article_46-1510079.html

All the best.
LDG

Edited by Lawrence D. Gorin on 2/7/2010 at 11:12 PM EST

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Lawrence D. Gorin
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