Feb 20, 2015 - 08:02 AM
According to Merwyn J. Miller from AboutLivingTrusts.com:
Divorced spouse of Living Veteran: A spouse of a living veteran cannot apply. Therefore, a divorced spouse of a living veteran cannot apply. The only person who can apply for the Pension Benefit is the veteran or the surviving spouse. [Veterans Benefits Manual, §7.1, 2009 Edition, Lexis-Nexis] This is apparent from the pension programs that exist. There is a Non-Service Connected Disability Pension available to Veterans. There is also a Non-Service Connected Death Benefit in the form of the Death Pension. This latter benefit is one to which the surviving spouse may be entitled, but not a divorced spouse of a Living Veteran. [38 USC 1541(a)] Whether a veteran could apply for his former spouse on the basis that a divorced spouse is a dependent due to terms of a court divorce order would probably occur rather rarely and is a different question than the one presented. This article does not deal with that latter issue.
Divorced Spouse of Deceased Veteran: To qualify as a surviving spouse of a veteran, the claimant must show that he or she was the valid spouse of the veteran at the time of the veteran’s death. [38 USC 101(2), 38 CFR 3.50] By definition, a person divorced from the veteran was not the valid spouse of the veteran when the veteran died. There is a possible exception as to being a “valid spouse” for someone who attempted to marry a veteran but the marriage was invalid due to a legal impediment. It would not appear that this exception would apply to a divorced spouse situation. Another possible exception would be if the surviving spouse separated from the veteran due to physical or emotional abuse and was not “at fault.” This latter exception has been applied to excusing the failure to cohabitate at the time of the Veterans death but does not appear to have ever been applied to a divorce situation. [Gregory v Brown, 4 Vet App 108, 113 (1993), Westberry v Principi, 255 F 3d 1377 (Fed Cir. 2001)]