Online resource center to help you explore these key issues, and others, regarding your estate.

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Mr. Miller has many years of experience in designing and implementing a comprehensive variety of Trusts, Wills, and other estate planning documents, as well as settling estates in the most expedient and appropriate method. Further, he counsels and assists clients on becoming eligible for VA benefits and Medi-Cal.

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VA Pension/Aid & Attendance/Medi-Cal

Mr. Miller has been active in the area of VA Pension and Medi-Cal for well over a decade. He uses various specialized types of Trusts as well as non-trust strategies to gain eligibility for his clients and save the family money.

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Probate & Estate Administration

Mr. Miller has been settling estates (both simple and complex) for well over 40 years. The starting point is always to create a strategy to settle the estate in the most efficient manner possible with a minimum of taxes. Often times the strategy created allows the family to bypass Probate Court proceedings.

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Do Survivor Benefits Survive Divorce?


By merv,

  Filed under: Blog, Elder Law, Estate Planning, Veteran's Benefits

Surviving spouses are eligible for a number of benefits after the death of their spouse.  There are estate tax benefits, such as the marital deduction allowing estate tax-free transfers to the surviving spouse, a simplified probate procedure (the spousal petition), and the list goes on.  Most benefits are available only to surviving spouses who are married at the time the deceased spouse dies.  However, in some cases, surviving former spouses may also receive benefits!

Family law and divorces are not the areas in my wheelhouse, but are nevertheless relevant to the areas that are: namely, estate planning and benefits planning.  In that context, some benefits ought to be secured at the time of the divorce.  For example, although surviving spouses may roll over their deceased spouse’s retirement plan to their own plan, a divorced spouse may not.  A former spouse will be treated as any other beneficiary, if named as a beneficiary of a retirement plan.  Qualified Domestic Relations Orders (QDROs) can allow for tax free transfers between former spouses’ retirement plans incident to divorce.  However, during probate, a similar order based on community interest in the retirement plan will not be considered a “qualified” order.

If you are divorced from a military member, the veteran may elect to have coverage for a former spouse Survivor Benefit Plan (SBP).  The coverage must be elected by the veteran spouse within one year of the divorce.   The benefit may entitle you to a portion of your former military spouse’s retirement, which may be beneficial in the future.  Whether or not you have remarried there are very limited circumstances in which you will be eligible for certain benefits such as VA Aid & Attendance Non-Service Connected Pension Benefit.  Securing SBP coverage, particularly if you will be dependent on alimony, may help cover some of the cost.

Depending on the length of your marriage, you may also qualify for a portion of your former spouse’s social security income.  If you were married at least 10 years, you may receive social security benefits from your former spouse to the extent they exceed the benefits you receive from your own work record.  However, if you are in a new marriage, you generally may not receive social security benefits from your former spouse.  Note that if you are remarried, then the termination of that second marriage may make you eligible again.  And if you were remarried after age 60, the new marriage is disregarded for social security purposes.

It is important to recognize that each of the areas touched upon here: social security, retirement plans, and veterans benefits are very complicated and intensely fact specific.  If you believe your marriage to your former spouse may make you eligible for any type of benefit, speaking with an attorney to evaluate your potential eligibility is essential.  With your attorney’s knowledgeable advice, you will be better equipped to know whether you should invest your time in the process of applying for benefits and to know how to increase your chances of being approved.

VA Aid & Attendance–How Can I Correctly Choose Help for my Application Process?  FREE REPORT:  This complimentary report focuses on the various kinds of people one can consult when applying for the Veterans Aid & Attendance benefit. Who one chooses can mean the difference between success and failure. Remember, if you are denied, you may not be able to reapply for up to a year or longer. Download our complimentary report for a behind the scenes look at the different types of people you can consult and the dirty underbelly of the Veterans Aid & Attendance industry.

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About Living Trusts

About Living Trusts is hosted by the Law Offices of Merwyn J. Miller, as your online resource center to help you explore these key issues, and others, regarding your estate.

Merwyn J. Miller, J.D.

  • Board Certified Specialist in Estate Planning, Trust & Probate Law
  • Co-Author of legal text book and of “Don’t Go Broke in a Nursing Home
  • Teacher of law courses at public and private colleges
  • Continuing Education Instructor for attorneys
  • Columnist for largest regional newspaper in San Diego County and professional journals for 15 years, Contributing author to the book “In Your Service: The Veteran’s Friend”
  • Masters Degree in Financial Services - Estate Planning
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