Part VI, Subpart iv, Chapter 1, Section BIncarceration of Dependents and Certain Survivors

Revised February 5, 2018

VI.iv.1.B.1.a#Discontinuing Pension Due to Excess Income After a Dependent’s Incarceration

According to 38 U.S.C. 1505(a), no pension shall be paid for an individual incarcerated for a felony or misdemeanor, beginning the 61st day of incarceration following conviction. If a Veteran’s or surviving spouse's entitlement to pension under the applicable income limitation is contingent on a sole dependent who is incarcerated in excess of 60 full days following conviction, discontinue the Veteran’s or surviving spouse's pension. The effective date of discontinuance is the 61st day of incarceration following conviction. The end-of-month rule described in M21-1, Part VII, Subpart i, 1.C.4.b does not apply.References: For more information on

• determining annual income, see 38 CFR 3.23(d)(4) and (5), and
• the requirement to provide a beneficiary advance notice of the Department of Veterans Affairs' (VA’s) intent to reduce or discontinue benefits due to incarceration, see Step 17 of the table in M21-1, Part VI, Subpart iv, 1.A.3.a.

VI.iv.1.B.1.b#Adjusting Pension Rate After a Dependent’s Incarceration

Pension payments to or for an individual incarcerated for a felony or misdemeanor will be discontinued on the 61st day of incarceration following conviction, under 38 CFR 3.666. If payments are made to a Veteran or surviving spouse with one or more dependents, and a dependent is incarcerated for a period in excess of 60 full days following conviction, amend the Veteran’s or surviving spouse's award to reflect the rate payable as if the incarcerated dependent did not exist. The effective date of a reduction or discontinuance is the 61st day of incarceration. The end-of-month rule described in M21-1, Part VII, Subpart i, 1.C.4.b does not apply.Ignore any income of the incarcerated dependent and recalculate the countable income.Exception: In some instances, a Veteran’s or surviving spouse’s pension rate could increase if the incarcerated dependent had income. In such cases, the delayed payment provision of 38 CFR 3.31 applies to the Veteran’s or surviving spouse’s increased pension rate.

VI.iv.1.B.1.c#Resuming or Increasing Pension Due to a Dependent’s Release

If an incarcerated dependent is released, any resumption or increase of the Veteran’s or surviving spouse's pension due to the release is effective from the date of release if the notice is received within one year after that date. Otherwise, any resumption or increase is effective from the date that such notice is received.Reference: For more information on resuming pension benefits following release from incarceration, see 38 CFR 3.666(c).

2Discontinuing Survivors Pension When a Surviving Spouse Is Incarcerated

This topic contains information on discontinuing the payment of Survivors Pension when a surviving spouse is incarcerated, including

• discontinuing Survivors Pension and potential pension payments to a child(ren)
• processing notice of the incarceration of a surviving spouse
• form claimants must submit to request payment of an incarcerated surviving spouse’s pension
• determining the effective date of payment of an incarcerated surviving spouse’s pension to the child(ren)
• notifying a child(ren) of the temporary nature of entitlement
• example of discontinuation of an incarcerated surviving spouse’s Survivors Pension award
• cases in which the surviving spouse’s award has been apportioned for a child
• paying or discontinuing a pension award to a child(ren)
• adjusting a child(ren)'s award in Survivors Pension cases, and
• handling Section 306 Pension cases.

Revised March 9, 2026

VI.iv.1.B.2.a#Discontinuing Survivors

Pension and Potential Payments to a Child(ren)

38 CFR 3.666(b) requires VA to discontinue a surviving spouse’s pension effective the 61st day of incarceration following conviction of a felony or misdemeanor. VA may pay pension to the Veteran’s child(ren) when a surviving spouse is incarcerated and the child(ren) meet the income requirements for Survivors Pension without consideration of the surviving spouse’s income. Pay Survivors Pension at a rate as if the incarcerated surviving spouse did not exist.Important: Payments to a child(ren) are permissible only when the surviving spouse is receiving

• current-law Survivors Pension and the child(ren) are in the custody of the surviving spouse at the time the surviving spouse is incarcerated, or
• Section 306 Pension.

Exception: VA may not pay pension to the dependent(s) of an incarcerated surviving spouse if the dependent is

• a fugitive felon, as defined in 38 CFR 3.666(e)(2), or
• incarcerated for conviction of a felony or misdemeanor.

VI.iv.1.B.2.b#Processing Notice of the Incarceration of a Surviving Spouse

Follow the instructions in M21-1, Part VI, Subpart iv, 1.A.3.a, following receipt of notice that a surviving spouse in receipt of Survivors Pension has been incarcerated. If VA is paying the surviving spouse for a child(ren), attach VA Form 21-0788, Information Regarding Apportionment of Beneficiary’s Award , to the notice of proposed adverse action pertaining to the incarceration. In the notice,

• advise the surviving spouse to furnish the name and address of the person or persons responsible for the child(ren)’s care during incarceration, and
• inform the surviving spouse that VA may pay benefits to the child(ren) from as early as the 61st date of incarceration following conviction only if VA receives a completed and signed _VA Form 21-0788 _within one year after the date of the notice.

VI.iv.1.B.2.c#Form Claimants Must Submit to Request Payment of an Incarcerated Surviving Spouse’s Pension

A claimant must submit VA Form 21-0788 to request payment of an incarcerated surviving spouse’s pension. Notes:

• VA will accept a completed and signed _VA Form 21-0788 _from
  • the surviving spouse’s child(ren), or
  • an individual responsible for the care of the surviving spouse’s child(ren) under age 18.
• Under 38 CFR 3.666, a claimant may submit an intent to file (ITF) a claim for payment of an incarcerated surviving spouse’s pension.

References: For more information on

• handling requests for the payment of an incarcerated surviving spouse’s pension that are not filed on the prescribed form, see M21-1, Part II, Subpart iii, 2.G.1
• claimant signatures, see M21-1, Part II, Subpart i, 2.B.2, and
• how a claimant may communicate an ITF, see M21-1, Part II, Subpart iii, 2.A.

VI.iv.1.B.2.d#Determining the Effective Date of Payment of an Incarcerated Surviving Spouse’s Pension to the Child(ren)

If VA receives a completed and signed VA Form 21-0788 or an ITF within one year after the date VA notified the surviving spouse of the child(ren)’s potential right to receive pension during the surviving spouse’s incarceration, the effective date of entitlement, if entitlement exists, is the 61st day of incarceration following conviction. Otherwise, the effective date can be no earlier than the date VA receives the form or ITF. Important: If VA does not receive notice of a surviving spouse’s incarceration until after incarceration has ended, no pension is payable to the child(ren). However, VA may still award pension to the child(ren) for the purpose of reducing the surviving spouse’s overpayment resulting from retroactive discontinuance of the surviving spouse’s benefits due to incarceration. The child(ren) will not receive any actual payments. Notes:

• If there is a delay between the 61st day of incarceration following conviction and the date VA discontinues an incarcerated surviving spouse’s pension, avoid paying the child(ren) benefits VA has already overpaid to the surviving spouse by
  • ensuring the effective date of payment of pension to the child(ren) is no earlier than the first of the month following the month for which VA last paid the surviving spouse pension, and
  • applying any pension due the child(ren), for the period between the 61st day of incarceration following conviction and the first of the month following the month for which VA last paid the surviving spouse pension, to the surviving spouse’s overpayment.
• Before applying benefits due the child(ren) to the surviving spouse’s overpayment, ensure VA has not already recouped or waived the overpayment.

References: For more information on

• applying benefits payable to the child(ren) of an incarcerated surviving spouse to the surviving spouse’s pension overpayment, see M21-1, Part VI, Subpart iv, 2.B.1.g, and
• effective dates and income limitations, see 38 CFR 3.666(b).

VI.iv.1.B.2.e#Notifying a Child(ren) of the Temporary Nature of Entitlement

When notifying a child(ren) of VA’s decision to pay the surviving spouse’s pension during the surviving spouse’s period of incarceration, advise the child(ren) that

• entitlement to the benefit is temporary, and
• payments are subject to immediate discontinuance when incarceration ends.

VI.iv.1.B.2.f#Example: Discontinuation of an Incarcerated Surviving Spouse’s Survivors Pension Award

Situation :

• A surviving spouse in receipt of Survivors Pension was convicted on October 18, 2021, and remains incarcerated after conviction.
• There is one eligible child in the legal custody of the surviving spouse. The child was born on June 9, 2010.
• On March 4, 2022, VA
  • sends notice of proposed adverse action to the surviving spouse, and
  • informs the surviving spouse and child of the child’s right to request payment of the surviving spouse’s pension.
• On May 3, 2022, VA receives a completed and signed VA Form 21-0788 for payment of the surviving spouse’s benefits. The child and custodian have no income.
• On May 8, 2022, VA discontinues the surviving spouse’s pension effective December 17, 2021.

Result:

• Award the child $210.00 effective May 1, 2022 (the first of the month following the month for which VA last paid the surviving spouse pension).
• Apply the benefits to which the surviving spouse’s child is entitled for the period December 17, 2021, to May 1, 2022, to the overpayment resulting from the retroactive adjustment to the surviving spouse’s award.

Reference: For more information on calculating the 61st day of incarceration following conviction, see M21-1, Part VI, Subpart iv, 1.A.4.a.

VI.iv.1.B.2.g#Cases in Which the Surviving Spouse’s Award Has Been Apportioned for a Child

If the surviving spouse’s award was already apportioned for a child(ren) prior to incarceration, do not change payments to or for the child(ren). If current income and net worth information is not of record, ask the child(ren)’s custodian or the child(ren), if of the age of majority, to provide it within 30 days**.Exception: Do not develop for income and net worth information from a child who is receiving Section 306 Pension unless it appears current-law pension would be to the child’s advantage. _Reference_ : For information on adjusting apportionment awards, see M21-1, Part VI, Subpart iv, 2.C and D.

VI.iv.1.B.2.h#Paying or Discontinuing a Pension Award to a Child(ren)

Follow the instructions in the table below after the earlier of the following occur:

• VA receives a response from the child(ren)’s custodian to the development letter referenced in M21-1, Part VI, Subpart iv, 1.B.2.g, or
• the 30-day response period referenced in M21-1, Part VI, Subpart iv, 1.B.2.g, expires.

VI.iv.1.B.2.i#Adjusting a Child(ren)’s Award in Survivors Pension Cases

In current-law Survivors Pension cases, adjusting an apportioned award to a child in the legal custody of the surviving spouse may result in either a discontinuance of or reduction in the child’s award. This adjustment is effective the later of either the

• 61st day of the surviving spouse’s incarceration following conviction, or
• date of discontinuance of the surviving spouse’s award.

VI.iv.1.B.2.j#Handling Section 306 Pension Cases

When the surviving spouse is receiving Section 306 Pension, any award to children either in or out of the surviving spouse’s custody is at the current-law pension rates.

3Reduction of DIC When a Surviving Spouse Is Incarcerated

This topic contains information on reducing DIC for an incarcerated surviving spouse, including

• right of a child(ren) to an apportionment when the surviving spouse is incarcerated, and
• determining the effective date of an apportionment of DIC due to incarceration.

Revised March 9, 2026

VI.iv.1.B.3.a#Right of a Child(ren) to an Apportionment When the Surviving Spouse Is Incarcerated

A person incarcerated for conviction of a felony may not receive full Dependency and Indemnity Compensation (DIC) after 60 full days of incarceration, under 38 CFR 3.665(a). Payment is reduced to one-half the rate that is payable to a Veteran for a service-connected (SC) disability VA has rated 10-percent disabling, according to 38 CFR 3.665(d)(3). Follow the instructions in M21-1, Part VI, Subpart iv, 1.A.3.a, following receipt of notice that a surviving spouse in receipt of DIC has been incarcerated.VA may apportion to a child(ren) all of the DIC no longer payable to the surviving spouse. Apportionment claimants must submit VA Form 21-0788 or an ITF (similar to the requirement expressed in M21-1, Part VI, Subpart iv, 1.B.2.c).Note: If an apportionment is awarded, inform the apportionee of the temporary nature of the apportionment (similar to the instructions in M21-1, Part VI, Subpart iv, 1.B.2.e).Reference: For more information on the right of a child(ren) to receive an apportionment of DIC when the surviving spouse is incarcerated, see

• 38 U.S.C. 5313(b)(2), and
• 38 CFR 3.665(e)(2).

VI.iv.1.B.3.b#Determining the Effective Date of an Apportionment of DIC Due to Incarceration

If VA receives a completed and signed VA Form 21-0788 or ITF within one year after the date VA notified the surviving spouse of the right of a child(ren) to receive a DIC apportionment during the surviving spouse’s incarceration, the effective date of entitlement, if entitlement exists, is the 61st day of incarceration following conviction. Otherwise, the effective date can be no earlier than the date VA receives the form or ITF. Important: If VA does not receive notice of a surviving spouse’s incarceration until after incarceration has ended, no DIC apportionment is payable. VA may award an apportionment, but only for the purpose of reducing the overpayment resulting from retroactive reduction of the surviving spouse’s benefits due to incarceration. The child(ren) will not receive any actual payments.Notes:

• If there is a delay between the 61st day of incarceration following conviction and the date VA reduces an incarcerated surviving spouse’s DIC, avoid apportioning benefits to the child(ren) that VA has already overpaid to the surviving spouse by
  • ensuring the effective date of payment of the DIC apportionment to the child(ren) is no earlier than the first of the month following the month for which VA last paid the surviving spouse the full rate of DIC, and
  • applying any benefits due the child(ren) (as an apportionment), for the period between the 61st day of incarceration following conviction and the first of the month following the month for which VA last paid the surviving spouse the full rate of DIC, to the surviving spouse’s overpayment.
• Before applying benefits due the child(ren) (as an apportionment) to the surviving spouse’s overpayment, ensure VA has not already recouped or waived the overpayment.

Reference: For more information on the procedure for reducing/eliminating an overpayment resulting from a beneficiary’s incarceration, see M21-1, Part VI, Subpart iv, 2.B.1.g.

4Adjusting DIC Awards When a Surviving Child Is Incarcerated

This topic contains information on adjusting DIC when a surviving child is incarcerated, including

• apportioning an award when there is an eligible surviving spouse or another child(ren)
• award action when an apportionment is authorized, and
• adjusting an award when there are no other eligible survivors.

Revised March 9, 2026

VI.iv.1.B.4.a#Apportioning an Award When There Is an Eligible Surviving Spouse or Another Child(ren)

If a surviving child is incarcerated for more than 60 days for a felony, DIC shall be one-half the rate of compensation that would be payable for an SC disability that is 10-percent disabling, under 38 CFR 3.665(d)(3). If a surviving child is incarcerated for a felony and there is an eligible surviving spouse or another child(ren), apportion the amounts not paid to the incarcerated child to the surviving spouse or other child(ren). References: For information on the

• authority to apportion the DIC benefits of an incarcerated child, see 38 CFR 3.665(e)(2), and
• procedures for apportioning the DIC benefits of an incarcerated surviving spouse, see M21-1, Part VI, Subpart iv, 1.B.3.

VI.iv.1.B.4.b#Award Action When an Apportionment Is Authorized

If an apportionment is authorized, pay it effective the 61st day of the child’s incarceration following conviction for a felony if VA receives a completed and signed VA Form 21-0788 or ITF within one year after the date VA notified the surviving spouse or other child(ren) of the right to an apportionment. Otherwise, the effective date can be no earlier than the date VA received the form or ITF. Reference: For more information on apportioning DIC awards, see M21-1, Part VI, Subpart iv, 1.B.3.

VI.iv.1.B.4.c#Adjusting an Award When There Are No Other Eligible Survivors

If there is no eligible surviving spouse or any other child(ren), adjust the award to one half of the rate payable for an SC disability that is 10-percent disabling.

5Adjusting Awards When a Parent Is Incarcerated

This topic contains information on adjusting benefit awards when a parent of a Veteran is incarcerated, including

• determining entitlement for two parents, and
• handling a parent’s award that is less than half of the rate payable for an SC disability that is 10-percent disabling.

Revised March 26, 2019

VI.iv.1.B.5.a#Determining Entitlement for Two Parents

If a parent is incarcerated for more than 60 days following conviction for a felony, the amount of DIC payable to the incarcerated parent shall be no more than one-half the rate of compensation that would be payable for an SC disability that is 10-percent disabling, under 38 CFR 3.665(d)(3). If two parents are both entitled to DIC and were living together prior to the time the DIC payable to one parent was reduced due to incarceration, consider them as two parents not living together for the purpose of determining entitlement to DIC, under 38 CFR 3.665(l).Reference: For more information on adjusting Parents' DIC awards, see M21-1, Part IX, Subpart iii, 1.D.

VI.iv.1.B.5.b#Handling a Parent’s Award That Is Less Than Half of the Rate Payable for an SC Disability That Is 10-Percent Disabling

If the incarcerated parent’s award is less than half of the rate payable for an SC disability that is 10-percent disabling, do not adjust the award. For these cases, a parent’s DIC award is subject to reduction below the incarcerated rate due to increased income.Note: Maintain current income data as in other Parents’ DIC cases.

6Incarceration of Apportionees and Custodians of Apportionees

This topic contains instructions for handling notice of incarceration of a(n)

• apportionee, and
• custodian who is
  • not an apportionee, and
  • also an apportionee.

Revised March 9, 2026

VI.iv.1.B.6.a#Incarceration of an Apportionee

VA may not apportion

• disability compensation or DIC to an individual who is incarcerated more than 60 days following conviction of a felony, or
• pension to an individual who is incarcerated more than 60 days following conviction of a felony or misdemeanor.

Follow the steps in the table below when an apportionment must be discontinued based on the policy expressed in the above paragraph. Exception: If the incarcerated individual is both an apportionee and the custodian of one or more other apportionees, follow the instructions in M21-1, Part VI, Subpart iv, 1.B.6.c.

VI.iv.1.B.6.b#Incarceration of a Custodian Who Is Not an Apportionee

VA may not issue payments to an apportionee’s custodian if the custodian has been incarcerated for any reason for more than 60 days.Follow the steps in the table below when

• payments to an apportionee’s custodian must be discontinued based on the policy expressed in the above paragraph, and
• the custodian is not one of the apportionees.

Important:

• Upon receipt of the VA Form 21-0788 referenced in Step 4 of the procedure described in the above table, process the new claim for an apportionment according to the instructions in M21-1, Part VI, Subpart iv, 2.A.

• The effective date of the new apportionment, if granted, is the date the prior apportionment ended, if VA receives the new claim for an apportionment within one year of the date of the decision notice referenced in Step 9 of the procedure described in the above table.

VI.iv.1.B.6.c#Incarceration of a Custodian Who Is Also an Apportionee

VA may not issue payments to an apportionee’s custodian if the custodian has been incarcerated for any reason for more than 60 days.Follow the steps in the table below when

• payments to an apportionee’s custodian must be discontinued based on the policy expressed in the above paragraph, and
• the custodian is also one of the apportionees.

Important:

• Upon receipt of the VA Form 21-0788 referenced in Step 7 or Step 13 of the procedure described in the above table, process the new claim for an apportionment according to the instructions in M21-1, Part VI, Subpart iv, 2.A.

• The effective date of the new apportionment, if granted, is the date the prior apportionment ended, if VA receives the new claim for an apportionment within one year of the date VA notified the custodian of VA’s decision to discontinue the prior apportionment.

7Resuming Payments or Making Award Adjustments After a Surviving Spouse’s Incarceration Ends

This topic contains information on resuming payments or making award adjustments after a surviving spouse’s incarceration ends, including

• resuming payments after receiving notice of a surviving spouse’s release
• requesting financial information when a surviving spouse with an eligible child(ren) is released
• adjusting a child’s award when not in the surviving spouse’s custody at the time of incarceration
• discontinuing a child’s award when restored to the surviving spouse’s custody
• determining a surviving spouse’s award
• notification upon release from incarceration, and
• example of adjustment of surviving spouse’s award after incarceration ends.

Revised March 9, 2026

VI.iv.1.B.7.a#Resuming Payments After Receiving Notice of a Surviving Spouse’s Release

After receiving notice from any official source that an incarcerated surviving spouse has been released, resume DIC or pension payments under 38 CFR 3.666(c). The effective date is either

• the date of release, if notification is received within one year, or
• the date of receipt of the notice, if notification is not received within one year after release.

Note: VA does not require the submission of a specific form to

• report that incarceration has ended, or
• request a resumption of benefits after incarceration has ended.

Reference: For more information on resuming benefits after incarceration ends, see M21-1, Part VI, Subpart iv, 1.A.5.

VI.iv.1.B.7.b#Requesting Financial Information When a Surviving Spouse With an Eligible Child(ren) Is Released

Following the release of a surviving spouse who was receiving pension prior to incarceration and has an eligible child(ren), request

• evidence of the surviving spouse’s income and net worth, and
• information as to whether or not the child(ren) remain in custody.

Note: Following the release of a beneficiary who was receiving Section 306 Pension prior to incarceration, continue to pay this benefit provided the reported income and net worth are within the applicable limits.

VI.iv.1.B.7.c#Adjusting a Child’s Award When Not in the Surviving Spouse’s Custody at the Time of Incarceration

Adjust an award to a child who was not in the surviving spouse’s custody at the time of incarceration, except in current-law pension cases, to the legacy apportioned rate effective the date of release, if notification is received within one year. Otherwise, the effective date is the

• date of receipt of notice, or
• date in the LAST PAID DATE field on the CURRENT AND HISTORICAL AWARD INFORMATION page in the Veterans Benefits Management System (VBMS), if an overpayment would result.

VI.iv.1.B.7.d#Discontinuing a Child’s Award When Restored to the Surviving Spouse’s Custody

Discontinue an award to a child who is restored to the surviving spouse’s custody effective the date in the LAST PAID DATE field on the CURRENT AND HISTORICAL AWARD INFORMATION page in VBMS.

VI.iv.1.B.7.e#Determining a Surviving Spouse’s Award

The surviving spouse’s award is subject to adjustment for any payments made to or for a child(ren) subsequent to the effective date of entitlement. For the period between the date incarceration ended and the first of the month following the month for which VA last paid benefits to the child(ren), pay the surviving spouse the difference between

• the full amount of benefits to which entitled, and
• the amount of benefits VA paid to the child(ren) during the same period of time.

After taking the action described in the preceding paragraph, resume payment of the full amount of benefits to which the surviving spouse is entitled effective the date in the LAST PAID DATE field on the CURRENT AND HISTORICAL AWARD INFORMATION page in VBMS.

VI.iv.1.B.7.f#Notification Upon Release From Incarceration

Notify both the surviving spouse and the child(ren) of the adjustments made to their individual awards, according to the instructions in M21-1, Part VI, Subpart i, 1.B.1. Note: Because the child(ren) have already been placed on notice of the temporary nature of entitlement to an apportionment (in accordance with the instructions in M21-1, Part VI, Subpart iv, 1.B.2.e), there is no need to provide notice of proposed adverse action to the child(ren) before making the adjustments.

VI.iv.1.B.7.g#Example: Adjustment of Surviving Spouse’s Award After Incarceration Ends

Situation :

• A surviving spouse in receipt of Survivors Pension was convicted on October 18, 2022, and remained incarcerated after conviction.
• The surviving spouse has a child who was born on June 9, 2008. VA has been paying pension to the child since after the surviving spouse’s incarceration.
• On July 3, 2024, VA received notice the surviving spouse was released on June 20, 2024.
• The full amount of pension payable to the surviving spouse, based on no household income and one dependent, is $1,173.00.
• VA last paid pension to the child in the amount of $228.00 for the month of June 2024.

Result:

• Discontinue the payment of pension to the child effective July 1, 2024.
• Resume the payment of pension to the surviving spouse in the amounts and from the dates shown below:
  • $945.00 from June 20, 2024 (this represents the difference between the full rate of pension payable to the surviving spouse on this date and the amount of pension VA had been paying to the child each month), and
  • $1,173.00 from July 1, 2024.
• Notify the surviving spouse and child (in separate letters) of the adjustments made to their individual awards.

8Resuming Payments or Making Award Adjustments After a Child’s or Parent’s Incarceration Ends

This topic contains information on resuming payments or making award adjustments after a child’s or parent’s incarceration ends, including

• adjusting an award when an incarcerated child is released
• resuming a pension award when an incarcerated child is the only child
• adjusting an award when
  • an incarcerated child who is not legally in the surviving spouse’s custody is released, and
  • there is no surviving spouse, but there is another surviving child(ren), and
• restoring payments when there is a change in an incarcerated parent’s payment status.

Revised December 14, 2020

VI.iv.1.B.8.a#Adjusting an Award When an Incarcerated Child Is Released

After a child’s incarceration ends,

• adjust the surviving spouse’s award to include this child, and
• resume DIC or pension payments effective either
  • the date of release, if VA received notice of the child’s release within one year of this date, or
  • the date VA received the notice, if VA did not receive notice within one year of the date of release.

VI.iv.1.B.8.b#Resuming a Pension Award When an Incarcerated Child Is the Only Child

If the incarcerated child was the only child, and the surviving spouse’s pension award was discontinued because income exceeded the limit for a surviving spouse with no dependents, resumption from the date of release is contingent upon the timely submission of evidence reestablishing entitlement.

VI.iv.1.B.8.c#Adjusting an Award When an Incarcerated Child Who is Not Legally in the Surviving Spouse’s Custody Is Released

If the incarcerated child is released and legally out of the surviving spouse’s custody,

• adjust the apportioned awards of any other children, and
• resume the payment of benefits, provided all eligibility factors are met.

VI.iv.1.B.8.d#Adjusting an Award When There Is No Surviving Spouse, but There Is Another Surviving Child(ren)

After a child’s incarceration ends, adjust all awards effective the

• date of release, if VA received notice of release within one year of the release date
• date of receipt of the notice of release, if VA did not receive notice of release within one year of the release date, or
• first of the month following the month for which VA last paid the beneficiary, if an overpayment would result.

Adjust the apportioned awards of any other children and continue to pay benefits, provided all eligibility factors are met.

VI.iv.1.B.8.e#Restoring Payments When There Is a Change in an Incarcerated Parent’s Payment Status

For those DIC cases in which an incarcerated parent’s payment status was changed from that of two parents living together to two parents not living together, upon release from incarceration, restore the payment status to that of two parents living together. Note: Presume the parents are reunited unless there is evidence to the contrary.

9General Information on the Payment of Accrued When a Claimant Is Incarcerated

Revised January 19, 2022

VI.iv.1.B.9.a#Paying Accrued to Incarcerated Individuals

Accrued payments may be paid in full to an eligible claimant that is incarcerated. These one-time, lump sum payments are not subject to the reductions of 38 U.S.C. 5313, which limits payments of running monthly awards to individuals incarcerated for conviction of a felony. Note: Full payment of a Nehmer award can also be made to an incarcerated Nehmer class member. Reference: For more information on the payment of benefits under the Nehmer stipulation, see M21-1, Part VIII, Subpart i, 2.A-C.