APPORTIONMENTSAPPORTIONMENTS

ReferencesReferences

38 CFR 3.450 – 3.461; 3.665 & 3.66638 CFR 3.450 – 3.461; 3.665 & 3.666

M21-1MR, Part III, Subpart v, Chap. 3M21-1MR, Part III, Subpart v, Chap. 3

OVERVIEWOVERVIEW

• What benefits are apportionable• Who may be eligible for an apportionment• What criteria the VA uses to determine• How much of veterans benefits can be

apportioned• Special situations where benefits may be

apportioned• When benefits will NOT be apportioned• Finally, death pension and DIC apportionments

General 3.450General 3.450

• (a)(1) – All or any part of the pension, compensation, or emergency officers’ retirement pay payable on account of any veteran may be apportioned.

• (i) On behalf of spouse, dependent children, or dependent parent if vet is incompetent and hospitalized or institutionalized by U.S. Government

3.450 Cont.3.450 Cont.

• (ii) If the vet is not residing with spouse or children not residing with the vet AND the veteran is not reasonably discharging his or her responsibility for the spouse’s or children’s support.

• (2) Where any children of a deceased veteran are not living with the veteran’s surviving spouse …

Special ApportionmentsSpecial Apportionments3.4513.451

• Without regard to any other provision regarding apportionment where hardship is shown to exist, pension, compensation,…may be specially apportioned between the veteran and his or her dependents… on the basis of the facts in the individual case as long as it does not cause undue hardship to the other persons in interest….

3.451 Cont.3.451 Cont.

• In determining the basis for special apportionment, consideration will be given such factors as:

• - Amount of VA benefits payable

• - Other sources of income for both the veteran and those claiming apportionment

• - Special needs of the veteran and claimants

3.451 Cont.3.451 Cont.

• The amount apportioned should generally be consistent with the total number of dependents involved.

• Ordinarily, apportionment of more than 50 percent would constitute undue hardship on the vet and less than 20 percent would not provide a reasonable amount for any apportionee.

Situations when benefits may be Situations when benefits may be apportioned 3.452apportioned 3.452

• (a) When the veteran is not residing with his or her spouse or children and a claim is filed for or on their behalf.

• (b) Pending the appointment of a guardian or other fiduciary.

3.452 Cont.3.452 Cont.

• (c)(1) Where an incompetent veteran without a fiduciary is receiving institutionalized care by the U.S.

• (2) Where a married veteran is receiving 306 or Improved Pension and the amount is reduced under 3.551(c) because of hospitalization

Also Apportionable UnderAlso Apportionable Under38 CFR 3.665 & 3.66638 CFR 3.665 & 3.666

• 3.665 - Incarcerated Beneficiaries - Compensation

– 3.665(e) - All or part of the compensation not paid to an incarcerated veteran may be apportioned to the veteran’s spouse, child or children and dependent parents on the basis of individual need.

– In determining individual need, consider claimant’s income, living expenses and amount available to be apportioned and needs and expenses of other claimants.

ExampleExampleApportionment under 3.665Apportionment under 3.665

• Married vet service connected at 100%

• Incarcerated for more than 60 days due to conviction of felony.

• Vet receives 10% - $123

• Remainder - $2,700 - May be apportioned to spouse.

Apportionment under 3.666Apportionment under 3.666

• 3.666 - Incarcerated Beneficiary - Pension

– Any individual receiving pension who is imprisoned as a result of conviction of a felony or misdemeanor will have pension discontinued on the 61st day of imprisonment.

– Payment may be made to the spouse, child or children if:

3.666 Cont.3.666 Cont.

• The veteran continues to be eligible except for imprisonment and

• The annual income of the spouse or child is such that death pension would be payable.

– At the rate payable under the death pension law or the rate which the veteran was receiving a the time of imprisonment, whichever is less

ExampleExampleApportionment under 3.666Apportionment under 3.666

• Married vet - No family income - Was receiving $1,291 a month.

• Spouse eligible to receive $661 a month while vet incarcerated.

• 3.666(4) - The income limitation applicable to eligible persons will be that which would apply if the imprisoned person did not exist.

Veterans disability pensionVeterans disability pension3.4543.454

• Apportionment of pension will be as follows:

• (a) Where a veteran with spouse or children is incompetent and without fiduciary and is maintained in an institution by the U.S., $25 will be paid to the institution and the remainder to the dependents

3.454 Cont.3.454 Cont.

• (b)(1) Where the amount of 306 pension payable to a married veteran is reduced to $50 monthly under 3.551(c), an apportionment may be made to the spouse upon an affirmative showing of hardship…to the difference between $50 and the amount of pension payable.

3.454 Cont.3.454 Cont.

• (b)(2) Where the amount of Improved Pension is reduced to $60 under 3.551(d) an apportionment may be made to the spouse upon affirmative showing of hardship… in an amount equal to the difference between $60 and the rate of pension that was being paid the veteran

Veteran’s benefits not Veteran’s benefits not apportionableapportionable

3.4583.458• Veterans benefits will not be apportioned:

• - Where the total benefit payable does not permit payment of a reasonable amount to any apportionee.

• - Where the spouse has been found guilty of conjugal infidelity by a court

3.458 Cont.3.458 Cont.

• - For the purported or legal spouse of the veteran if it has been determined that he or she has lived with another person and held herself or himself out openly to the public to be the spouse of such other person …

• - Where the child of the veteran has been legally adopted by another person

3.458 Cont.3.458 Cont.

• - Until the estranged spouse files claim for an apportioned share.

• - If there are any children of the veteran not in his or her custody an apportionment will not be authorized unless and until a claim for an apportioned share is filed in their behalf.

Death PensionDeath Pension3.4603.460

• Death pension will be apportioned if the child or children of the deceased vet are not in the custody of the surviving spouse.

• Improved death pension – apportionment of benefits provided under this program shall be made under the special apportionment provision of 3.451

D.I.C.D.I.C.3.4613.461

• The surviving spouse’s award of DIC will be apportioned where there is a child under 18 years of age and not in the custody of the surviving spouse.

• The surviving spouse’s award of DIC will not be apportioned for a child over the age of 18.

3.461 Cont.3.461 Cont.

• Rates Payable:

• - The share for each child, both in the surviving spouse’s custody and those not in such custody, will be at rates approved by the Under Secretary for Benefits, except when the facts and circumstances warrant special apportionment under 3.451.

3.461 Cont.3.461 Cont.

• The share to the surviving spouse will be the difference between the children’s share and the total amount payable, however the surviving spouse’s share will not be reduced to an amount less than 50% of that to which he or she would otherwise be entitled.

3.461 Cont.3.461 Cont.

• The additional amount of A&A, where applicable, will be added to the surviving spouse’s share and not otherwise included in the computation.

Final Point to ConsiderFinal Point to Consider

• Conflicting POA’s

• Before filing for an apportionment for a dependent, verify the veterans POA and make sure the claimant doesn’t have the same one.

• If you have worked with the veteran as his/her representative, you should not represent the dependent in an apportionment request.