§1318 — Title 38 Veterans' Benefits | U.S. Code

Summary

The VA must pay survivor benefits to a veteran’s spouse and children as if the veteran’s death was caused by military service when the veteran was rated totally disabled for a service-connected condition at the time of death and did not die because of their own intentional wrongdoing. To qualify the total disability rating must have been continuous for at least 10 years right before death, or for at least 5 years starting from the veteran’s discharge, or for at least 1 year right before death if the veteran was a former prisoner of war. The veteran must have been receiving or entitled to receive that disability pay (or would have been if not receiving retirement pay). A surviving spouse only qualifies if they were married to the veteran for at least one year before death or if the marriage produced a child (or a child was born to them before the marriage). If a surviving spouse or child gets money or property from a lawsuit or settlement for the veteran’s death, VA survivor benefits stop for months after the month the money or property is received until the total amount of benefits that would have been paid equals the cash and fair market value of the property received. For certain military pay rules, being eligible under this rule counts as eligibility for dependency and indemnity compensation.

Title 38, §1318

Veterans' Benefits — Source: USLM XML via OLRC

(a)The Secretary shall pay benefits under this chapter to the surviving spouse and to the children of a deceased veteran described in subsection (b) of this section in the same manner as if the veteran’s death were service connected.

(b)A deceased veteran referred to in subsection (a) of this section is a veteran who dies, not as the result of the veteran’s own willful misconduct, and who was in receipt of or entitled to receive (or but for the receipt of retired or retirement pay was entitled to receive) compensation at the time of death for a service-connected disability rated totally disabling if—

(1)the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death;

(2)the disability was continuously rated totally disabling for a period of not less than five years from the date of such veteran’s discharge or other release from active duty; or

(3)the veteran was a former prisoner of war and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death.

(c)Benefits may not be paid under this chapter by reason of this section to a surviving spouse of a veteran unless—

(1)the surviving spouse was married to the veteran for one year or more immediately preceding the veteran’s death; or

(2)a child was born of the marriage or was born to them before the marriage.

(d)If a surviving spouse or a child receives any money or property of value pursuant to an award in a judicial proceeding based upon, or a settlement or compromise of, any cause of action for damages for the death of a veteran described in subsection (a) of this section, benefits under this chapter payable to such surviving spouse or child by virtue of this section shall not be paid for any month following a month in which any such money or property is received until such time as the total amount of such benefits that would otherwise have been payable equals the total of the amount of the money received and the fair market value of the property received.

(e)For purposes of section 1448(d) and 1450(c) of title 10, eligibility for benefits under this chapter by virtue of this section shall be deemed eligibility for dependency and indemnity compensation under section 1311(a) of this title.

Notes & Related Subsidiaries

Editorial Notes

Amendments

2010—Subsec. (b)(3). Pub. L. 111–275 struck out “who died after September 30, 1999,” after “prisoner of war”. 2000—Subsec. (b)(3). Pub. L. 106–419 substituted “not less than” for “not later than”. 1999—Subsec. (b). Pub. L. 106–117, § 501(b)(1), substituted “rated totally disabling if—” for “that either—” in introductory provisions. Subsec. (b)(1). Pub. L. 106–117, § 501(b)(2), inserted “the disability” after “(1)” and struck out “or” after “death;”. Subsec. (b)(2). Pub. L. 106–117, § 501(b)(3), substituted “the disability was continuously rated totally disabling” for “if so rated for a lesser period, was so rated continuously” and substituted “; or” for the period at the end. Subsec. (b)(3). Pub. L. 106–117, § 501(b)(4), added par. (3). 1991—Pub. L. 102–83, § 5(a), renumbered section 418 of this title as this section. Subsec. (a). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted “Secretary” for “Administrator”. Subsec. (e). Pub. L. 102–83, § 5(c)(1), substituted “1311(a)” for “411(a)”. 1989—Subsec. (c)(1). Pub. L. 101–237 substituted “one year” for “two years”.

Statutory Notes and Related Subsidiaries

Effective Date

of 2010 Amendment Pub. L. 111–275, title VI, § 603(b), Oct. 13, 2010, 124 Stat. 2885, provided that: “The amendment made by subsection (a) [amending this section] shall take effect on October 1, 2011.”

§1318 Benefits for Survivors of Certain Veterans Rated Totally Disabled at Time of Death