Veteran’s Spousal Benefits

En Español

Q. Will same-sex spouses, widows and widowers be eligible to receive Veteran’s spousal benefits, wherever they live?

A. In most instances, yes. Following the Supreme Court’s 2013 United States v. Windsor ruling, which struck down a law barring the federal government from recognizing the marriages of same-sex couples, veteran’s spousal protections, such as home loan guaranties, survivor’s pensions and burial benefits, became available to many same-sex spouses.

However, the relevant federal statute looks to the state law of the veteran’s place of residence at the time of marriage or when the right to benefits accrued to assess who is a spouse for federal veteran’s benefits purposes. As a result, even after Windsor, the United States Department of Veteran’s Affairs (VA) followed a policy deeming married same-sex spouses to be unmarried, and their spouses, widows and widowers to be ineligible for spousal benefits, if the veterans lived in states that refused to recognize their marriages both at the time they married and when the right to the benefit accrued. Lambda Legal has a lawsuit pending challenging this policy as unconstitutional to the extent it has resulted in denial of spousal veteran’s protections based on the types of discriminatory state marriage laws the Supreme Court found to be unconstitutional in its marriage ruling.

Now that every state must give legal recognition to validly entered marriages of same-sex couples, going forward this policy should no longer be a barrier for same-sex spouses, whose marriages should be treated by the VA no differently than those of other spouses.

The VA has issued guidance for same-sex spouses, which you should consult, along with general guidance on the range of available Veteran’s spousal benefits.
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Q. Should couples who received a final determination from the VA denying benefits reapply?

A. We await further guidance from the VA regarding its policies for applying the Supreme Court’s marriage decision to pending and final claims for VA spousal benefits that were denied based on the place of residence standard. We will be advocating to ensure that veterans and their spouses do not face further discrimination. Contact one of our organizations if you continue to face obstacles to eligibility for VA benefits.
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This guidance is intended to provide general information. It should not be construed as legal advice or a legal opinion on any specific facts or circumstances, and does not create an attorney-client relationship. None of the organizations publishing this information can ensure the information is current or be responsible for any use to which it is put.