Spouse and Surviving Spouse

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AI36

Spouse and Surviving Spouse

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends Department of Veterans Affairs (VA)

adjudication regulations to replace gender-specific language with

gender-neutral language. The amendments are necessary to conform the

adjudication regulations with the VA policy that all of its

publications will be stated in a manner that does not seem to preclude

benefits for female veterans, dependents or beneficiaries.

EFFECTIVE DATE: This amendment is effective February 6, 1997.

FOR FURTHER INFORMATION CONTACT:Paul Trowbridge, Consultant,

Compensation and Pension Service (213), Veterans Benefits

Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW,

Washington, DC 20420, telephone (202) 273-7218.

SUPPLEMENTARY INFORMATION: It is our policy that in any VA publication

and in any communications, words and statements denoting gender shall

avoid any appearance of seeming to preclude benefits for female

veterans, dependents, or beneficiaries. We believe that the best way to

do so is to use gender-neutral terms such as ``spouse'' or ``surviving

spouse'' rather than gender-specific terms such as ``husband,''

``wife,'' ``widow,'' or ``widower.''

This document deletes references throughout 38 CFR part 3 to

``wife,'' ``husband,'' ``widow,'' or ``widower,'' and replaces them

with the terms ``spouse'' and ``surviving spouse.'' In 38 CFR

3.205(a)(6), ``held themselves out as married'' has been substituted

for ``held themselves out as husband and wife.'' 38 CFR 3.50 is revised

to provide a new definition of ``spouse'' and ``surviving spouse'' to

reflect statutory requirements. Because of this change, it is no longer

necessary to define ``wife'' and ``widow.'' These terms are therefore

removed. 38 CFR 3.51 previously provided that the term ``wife''

includes the husband of a female veteran and the term ``widow''

includes the widower of a female veteran. Because we have substituted

gender-neutral terms such as ``spouse'' and ``surviving spouse'' for

terms such as ``wife,'' ``husband,'' ``widow,'' or ``widower''

throughout the adjudication regulations, 38 CFR 3.51 is no longer

necessary and we have removed it.

Since these amendments make no substantive change to the

regulations, the Secretary finds that notice and public procedure

thereon are unnecessary. Accordingly, these amendments are promulgated

without

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regard to the notice-and-comment and effective-date provisions of 5

U.S.C. 553.

Because no notice of proposed rulemaking was required in connection

with the adoption of this final rule, no regulatory flexibility

analysis is required under the Regulatory Flexibility Act (5 U.S.C.

601-612). Even so, the Secretary hereby certifies that this final rule

will not have a significant economic impact on a substantial number of

small entities as they are defined in the Regulatory Flexibility Act.

The Catalog of Federal Domestic Assistance program numbers are

64.104, 64.105, 64.109, 64.110.

List of Subjects in 38 CFR Part 3

Administrative practice and procedure, Claims, Disability benefits,

Health care, Pensions, Veterans, Vietnam.

Approved: January 27, 1997.

Jesse Brown,

Secretary of Veterans Affairs.

For the reasons set forth in the preamble, 38 CFR part 3 is amended

as follows:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity

Compensation

1. The authority citation for part 3, subpart A continues to read

as follows:

Authority: 38 U.S.C. 501(a), unless otherwised noted.

2. Section 3.50 is revised to read as follows:

Sec. 3.50 Spouse and surviving spouse.

(a) Spouse. ``Spouse'' means a person of the opposite sex whose

marriage to the veteran meets the requirements of Sec. 3.1(j).

(b) Surviving spouse. Except as provided in Sec. 3.52, ``surviving

spouse'' means a person of the opposite sex whose marriage to the

veteran meets the requirements of Sec. 3.1(j) and who was the spouse of

the veteran at the time of the veteran's death and:

(1) Who lived with the veteran continuously from the date of

marriage to the date of the veteran's death except where there was a

separation which was due to the misconduct of, or procured by, the

veteran without the fault of the spouse; and

(2) Except as provided in Sec. 3.55, has not remarried or has not

since the death of the veteran and after September 19, 1962, lived with

another person of the opposite sex and held himself or herself out

openly to the public to be the spouse of such other person.

Sec. 3.51 [Removed]

3. Section 3.51 is removed.

Sec. 3.106 [Amended]

4. In Sec. 3.106, paragraph (e) is amended by removing ``widow''

and adding, in its place, ``surviving spouse''.

Sec. 3.205 [Amended]

5. In Sec. 3.205, the last sentence of paragraph (a)(6) is amended

by removing ``husband and wife'' and adding, in their place,

``married''.

Sec. 3.214 [Amended]

6. In Sec. 3.214, the section heading is amended by removing

``widows'' and adding, in its place, ``surviving spouses''.

Sec. 3.252 [Amended]

7. In Sec. 3.252, paragraph (b) is amended by removing ``widow or

widower'' each time they appear and adding, in their place, ``surviving

spouse''; and paragraph (e) is revised to read as follows:

Sec. 3.252 Annual income; pension; Mexican border period and later war

periods.

* * * * *

(e) Surviving spouse with a child--(1) Child. The term ``child''

means a child as defined in Sec. 3.57. Where a veteran's child is born

after the veteran dies, the surviving spouse will not be considered a

surviving spouse with a child prior to the child's date of birth.

(2) Veteran's child not in surviving spouse's custody. Where the

veteran was survived by a surviving spouse and by a child, the income

increments for a surviving spouse and child apply even though the child

is not the child of the surviving spouse and not in his or her custody.

(3) Income of child. The separate income received by a child or

children, regardless of custody, will not be considered in computing

the surviving spouse's income. Where the separate income of the child

is turned over to the surviving spouse, only so much of the money as is

left after deducting any expenses for maintenance of the child will be

considered the surviving spouse's income.

(4) Alternative rate. Whenever the monthly pension rate payable to

the surviving spouse under the formula in 38 U.S.C. 1541(c) is less

than the rate payable for one child under section 1542 if the surviving

spouse were not entitled, the surviving spouse will be paid the child's

rate.

* * * * *

8. Section 3.257 is revised to read as follows:

Sec. 3.257 Children; no surviving spouse entitled.

Where pension is not payable to a surviving spouse because his or

her annual income exceeds the statutory limitation or because of his or

her net worth, payments will be made to or for the child or children as

if there were no surviving spouse.

Sec. 3.262 [Amended]

9. In Sec. 3.262, paragraph (k)(6) is amended by removing ``widow''

and adding, in its place, ``surviving spouse''.

Sec. 3.400 [Amended]

10. In Sec. 3.400, paragraph (e)(2) is amended by removing

``widow's or widower's'' each time they appear and adding, in their

place, ``surviving spouse's'' and by removing ``widow or widower'' and

adding, in their place, ``surviving spouse''.

Sec. 3.401 [Amended]

11. In Sec. 3.401, paragraph (c), the heading is amended by

removing ``wife (husband)'' and adding, in their place, ``spouse''.

Sec. 3.666 [Amended]

12. In Sec. 3.666, paragraph (b)(1) is amended by removing ``widow

or widower'' and adding, in their place, ``surviving spouse''.

Sec. 3.702 [Amended]

13. In Sec. 3.702, paragraph (e), the heading is amended by

removing ``Widow (widower)'' and adding, in their place, ``Surviving

spouse''.

Sec. 3.805 [Amended]

14. In Sec. 3.805, paragraphs (d) and (e) are amended by removing

``widow (widower)'' each time they appear and adding, in their place,

``surviving spouse''; and paragraph (f) is amended by removing

``herself (himself)''.

Sec. 3.857 [Amended]

15. In Sec. 3.857, the heading and text are amended by removing

``widow or widower'' each time they appear and adding, in their place,

``surviving spouse''.

Sec. 3.1000 [Amended]

16. In Sec. 3.1000, paragraph (a)(2) is amended by removing ``widow

or remarried widow'' and adding, in their place, ``surviving spouse or

remarried surviving spouse''; paragraph (b)(3) is amended by removing

``widow's'' and adding, in its place, ``surviving spouse's''; the

introductory text of paragraph (c) is amended by removing ``widow'' and

adding, in its place, ``surviving spouse''; paragraph (d)(1) is amended

by removing ``widow or

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widower'' and adding, in their place, ``surviving spouse''; and

paragraph (f) is amended by removing ``widow or widower'' and adding,

in their place, ``surviving spouse'' and by removing ``wife or

husband'' and adding, in their place, ``spouse''.

[FR Doc. 97-2903 Filed 2-5-97; 8:45 am]

BILLING CODE 8320-01-P