Estate and Advance Care Planning for Veterans

Updated

Estate and advanced care planning allow you to complete the puzzle of your life by setting out instructions for your care and your property. These decisions form your final legacy to your loved ones, and removing the decision-making burden from them can be one of the best gifts of all.

Estate planning deals with the care and distribution of your assets and property after your death, and they can be as unique as you are. For example, some estate plans simply pass along all assets to a single, close family member. Other people with more accumulated wealth choose to set up long-term trusts that support generations to come. 

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Conversely, advanced care planning focuses on you and your wishes at the end of your life, whether that be at the end of a long and happy life or one cut short by unexpected illness or injury. Here’s what you need to know about estate and advance care planning for veterans. 

Why Is Estate Planning and Advance Care Planning for Veterans Important?

In addition to the typical estate and advanced care planning issues that most people need to tackle, veterans also have a web of sometimes-complex military benefits to address. These benefits form a significant part of military personnel’s compensation package, so maximizing them for the benefit of you and your loved ones is crucial for overall financial well-being.

Of course, active-duty service members can face a higher risk of death and injury that make estate and advance care planning feel more real and imminent than the average person. However, completing these documents can give you added peace of mind when you leave home.

Death without a will or other estate plan

Regardless of your military status, if you pass away without a will or taking other estate planning measures, your state’s intestacy laws dictate who inherits your property. Depending on your state, your assets will pass to some combination of your spouse, children or other descendants, and parents. 

Many people assume they’ll be satisfied with those results. After all, you won’t be around to see the consequences. Depending on your family structure, though, you might not end up providing the support to loved ones that you anticipate. 

Many states would give only a portion of the probate estate to a surviving spouse if either partner had children from another relationship. And, that portion could be regardless of the length of the marriage, resulting in late-in-life remarried spouses inheriting much more than your children.

As you’ll see below, estate planning can take on many forms beyond a traditional will, so you’ll have many options to find the right fit for you and your family.

End-of-life care without advanced planning

Unlike estate planning, you will be around to experience the consequences of no advanced care planning. The results can be heart-breaking for everyone involved. 

Hospitals typically rely on internal procedures for designating a healthcare proxy in emergencies. They’ll turn to the closest family member they can find to make time-sensitive decisions regarding your care, but that authority ends at the hospital walls. 

In order to have the power to discharge you from the hospital, establish long-term care, pay your bills, apply for benefits on your behalf, and make non-emergent medical care decisions, your loved ones will likely have to pursue guardianship and conservatorship through your local court.

Besides creating an added administrative burden for your family when they’re already worried about you, the process can be expensive and allow family conflict and disagreement to flourish. 

Estate Planning Considerations for Veterans

Estate planning addresses the disposal of your assets after you die, and there are many ways to do it. People typically think of wills as the primary estate planning tool, but it is only one option.

Your will distributes only your probate estate, but many assets commonly pass outside of the probate process through non-probate transfers. When you establish a payable-on-death beneficiary for an account or policy, those assets transfer outside of probate and directly to the beneficiary with proof of your death. 

Veterans and active-duty service members can earn many benefits for their loved ones, but these typically pass to a designated beneficiary. As a result, they don’t need to be specifically distributed in your will, but the amount and duration of these benefits should shape your estate planning goals.

Survivor Benefit Plan

The Military Survivor Benefit Plan (“SBP”) forms an essential part of a service member’s compensation package. It provides up to 55 percent of a retired service member’s pay to the beneficiary at the retired veteran’s death, which can provide vital income for surviving family members as retiree pay otherwise ends with the veteran's death.

The veteran pays a subsidized premium from their retirement income, so the plan isn’t free. Rather, it’s more comparable to a life insurance plan with the premium partially paid by the government. 

As with life insurance plans, the veteran designates a beneficiary to receive the survivor’s benefits, but the military does restrict eligible beneficiaries. The veteran’s spouse can be the designated recipient. You can also set children as a secondary beneficiary to the spouse, or they can be the primary one if you have no spouse. However, children only get benefits while they meet the requirements of an eligible dependent. 

When veterans lack a spouse or dependents, they can designate another person or entity, like a parent. 

Because the SBP requires a designated beneficiary, this asset passes outside of probate. As a result, you do not need to address it in your will, and any provisions in your will cannot override the terms of the plan.

Gold Star and Surviving Family Members' Benefits

The SBP described above differs from that available to the families of service members who die in the line of duty. 

First, the surviving family members can receive a death gratuity, which is a lump-sum payment of $100,000. The service member designates one or more people to receive the benefit, and they make the divisions in ten percent increments. For example, you could allocate 50 percent to a spouse and ten percent to each of your five children. 

As with the SBP, the death gratuity is not part of your probate estate or ruled by your will. 

Family members of service members who die in the line of duty or veterans whose death was duty-related can receive additional benefits, including funeral and burial benefits, the SBP, and group life insurance policy payments.

Survivors can also receive Dependency and Indemnity Compensation (“DIC”), which is a flat monthly payment. The DIC goes to the surviving spouse and eligible dependent children, and several age and remarriage restrictions apply.

Considerations for veterans with blended families

Dividing your estate among children from multiple relationships, a new spouse, and perhaps even stepchildren can make for some hard decisions. The process can be a little more complex for veterans because they need to factor in the array of military benefits that their spouse and dependent children can be eligible for.

As you draft your estate plan, remember anything that you bequeath to someone outright becomes theirs to dispose of as they please. In blended families, this can play out as leaving a gift to a surviving spouse with the anticipation that they’ll later pass on the remainder to your children in their own will. However, unless two spouses create a will contract, the surviving spouse retains the right to make their own will and distribute their property as they want.

Several options exist to manage this reality, including premarital agreements, life interests, and will contracts.

Trusts as a planning tool for service members

Trusts pull double duty as an advance care planning tool as well as a method for estate planning. You can create a trust for your own benefit while you’re alive and use the funds and assets as needed. Then, that same trust can operate after your death under the guidance of a trustee to continue providing support to loved ones or to hold assets until they can be distributed to your beneficiaries. 

Active-duty service members or veterans concerned about the possibility of injury, disability, or long-term health concerns can use trusts to plan injury or varying levels of incapacity. Trusts can help you put your finances on auto-pilot so that if something happens to you, your successor trustee can seamlessly step in and continue your financial plan. You can remain the trustee as long as you are able.

Trusts can also shelter your assets from being consumed by expensive medical bills not covered by military benefits. 

Then, after your death, your trust transitions to a vessel for your estate, and the successor trustee follows the rules established for your trust for distributing the assets.

Considerations for families with a deceased family member who was a veteran

As noted above, families of deceased veterans can be eligible for several benefits. Those who receive payments from Servicemembers’ Group Life Insurance, Traumatic Injury Projection, Family Servicemember’s Group Life Insurance, or Veterans’ Group Life Insurance can get free financial counseling and online will preparation through the VA.

Estate Planning Checklist for Veterans

As you create your estate plan, several documents can work together to make a customized plan supporting your loved ones and forming your legacy.

  • Will: Your will provides instructions for distributing your probate estate. It also nominates a personal representative or executor and might also name a guardian for your minor children. After your death, your will becomes a public document viewable at your local probate or district court.
  • Trust: Some people rely on a trust to manage their assets after they die. Unlike a will, a trust can hold your assets for many years and slowly distribute portions of the trust over time according to the rules you establish.Trust terms remain private after your death. 
  • Non-probate transfers: Review and update your beneficiary designations as needed. In addition to naming a beneficiary for life insurance policies, bank accounts, investment accounts, and retirement accounts or pensions, many states also allow for beneficiary deeds for real estate.

Advance Care Planning Considerations for Veterans

Advanced care planning allows you to make a plan regarding your care and support if you become unable to make decisions for yourself or lose the ability to communicate your preferences. Of course, advanced care planning is valuable to you in that it maximizes the likelihood that you receive the care you want in a way that feels dignified and appropriate based on your values. 

Just as importantly, advanced care planning removes the worst of the burden of decision-making from your loved ones. Rather than making life or death decisions on your behalf, they can take comfort in simply following your instructions. Ideally, your clear directives also reduce the likelihood of family conflict over your care.

Advance care planning for all veterans

Advance care planning can involve several documents that describe your wishes in various medical settings and circumstances. You can let the documents speak for themselves or include your loved ones in a discussion explaining your choices.

While starting a serious conversation about your end-of-life wishes or the type of care you want if you’re in a serious accident can be uncomfortable and awkward, it can make the decisions easier for your family later on. While they and medical professionals should follow your written wishes regardless, it can significantly help your family cope with your illness if they aren’t shocked by the contents of your advance directives. 

If possible, use the illness or death of a loved one or beloved family pet as a starting point for the conversation. For example, you might bring up the anguish of choosing to euthanize a suffering canine companion to discuss your own thoughts about palliative care and life-sustaining treatment–and your desire for your family to avoid feelings of guilt or uncertainty about what to do for you. 

Additionally, make your family aware of your planning documents and let them know where to find them. 

As you compile your documents, a few key topics that most people want to address include:

  • Delegation of decision-making if you lose capacity;
  • The desire for life-sustaining treatment and palliative care and;
  • Organ and tissue donation preferences

Considerations for disabled veterans

Ideally, your advanced care documents reflect your unique needs and concerns and should be updated as you age and develop new health concerns. However, if you already have significant health concerns, there are some extra steps you can take to tailor your documents. 

First, many states allow people with serious health conditions to create physician orders for life-sustaining treatment (“POLST”). Also called medical orders for life-sustaining treatment (“MOLST”), a POLST works in addition to your living will and provides condition-specific care directions. Your doctor fills out this form with you based on your preferences for life-sustaining care and the likely possibilities of your illness. As a result, it includes specific treatments for specific circumstances, like when to transfer to an emergency room, whether to perform CPR, or when to administer antibiotics. You keep the POLST with you, and it can even be posted at your bedside in the hospital or in another care setting. 

Second, you can nominate a guardian and conservator in your living will. In the event that you lose the ability to make decisions for yourself and someone needs to pursue a court order to act on your behalf, you can be sure that it’s someone you know and trust. Ideally, your loved ones can act on your behalf with just the power of attorney that you also execute, but sometimes complicated financial or medical situations arise that require court orders.

VA Fiduciary Program

The Department of Defense created a special fiduciary program for veterans operated through the VA. It ensures that veterans can get the needed assistance in managing their finances and arranging medical care if they are unable to do it themselves.

Typically, the VA tries to arrange for family or friends to serve in this role. However, it can also coordinate the appointment of professional fiduciaries if the veteran lacks a willing or appropriate family member to perform the duties. The fiduciary remains accountable to the VA and subject to its rules for fiduciaries. 

You and your loved ones can avoid many of these additional hurdles through comprehensive advance care planning.

Advance Care Planning Checklist for Veterans

As you create your advanced directives, consider what you want your quality of life to be like and your values. These things often change through the years and with different stages of life, so it’s a good idea to revisit your documents in each season of life.

  • Living will: Also called an advanced care directive, your living will provides your family and care providers with instructions about your care. A living will typically includes instructions regarding life-sustaining care and other extraordinary measures, including intubation, tube feeding, ventilation, cardiovascular stimulation, and dialysis. You might also use this document to nominate a guardian for your minor children and a caretaker for your pets, consent to organ and tissue donation, and donate your body to science.
  • Power of attorney: Powers of attorney give authority to another person to act on your behalf. Several types exist. Traditional powers of attorney lose authority when the subject loses decision-making capacity, but a durable power of attorney remains valid regardless of the subject’s condition. Springing powers of attorney only take effect upon the serious illness or incapacity of the subject. Powers of attorney can be for medical decision-making, financial decision-making, or both. 
  • Do not resuscitate order: Separate from your living will, you might make a do not resuscitate order (“DNR”). Many states provide a statutory, standard form for this purpose. 
  • Organ and tissue donation: You can also provide authorization for organ and tissue donation separate from your living will. Your state might have a specific form or registry for this, and many states also allow for registration through the department of motor vehicles. These additional registration options increase the likelihood that your care team will receive authorization while your organs and tissues are still viable. 
  • Physician orders for life-sustaining treatment (“POLST”): Also called medical orders for life-sustaining treatment (“MOLST”), these state-specific documents are for people diagnosed with terminal illnesses. A POLST works in addition to your living will and provides specific-condition care directions. Your doctor fills out this form based on your medical issue and your preferences. You keep the POLST with you.

Free Estate Planning and Advance Care Planning Help for Veterans

In addition to the many online resources available to the general public, active and retired service members can get additional help through the military-sponsored and adjacent programs. 

Benefits reports

As you make your estate plan, understanding the types of benefits and the amounts that your loved ones will be eligible for is critical to establishing your overall estate plan. These amounts might shape the gifts you choose to leave to them, other family members, or charitable organizations. 

You or your loved ones can access a personalized online report through your service branch. You can contact the Family Assistance Support Team at 877-827-2471 or osbr@afsc.com for questions about the online report results.

U.S. Armed Forces Legal Assistance

Eligible military personnel and their families can access free legal assistance, including estate planning and advanced care planning advice, through the U.S. Armed Forces Legal Assistance program. You can find the nearest legal assistance site online.

You can access legal assistance from any office or installation, regardless of your branch. For example, an Army member could visit the nearest Marine legal assistance office for help.

Active-duty personnel, their families, and reservists who have been activated, are soon to be deployed, or are recently returned from deployment are all eligible for legal assistance. In addition, national Guard members on duty for at least 30 days and honorably discharged veterans can also get help. 

Legal assistance attorneys are subject to availability, and an office might prioritize those facing imminent deployment.

Advance care planning with the VA

Many veterans rely on the VA for their healthcare, so it can also be a good place to turn to for assistance with advance care planning. In addition to VA online resources, you can also turn to your VA healthcare provider or social worker for help setting care planning goals. 

The VA offers advance care planning group visits for those who value in-person discussions and meetings. The group discussions with other veterans can help you identify goals and values and troubleshoot issues that may arise for you.

The VA also offers a standard form for advanced directive and power of attorney documents as well as a goals sheet to help you rank your values when making care decisions. 

Other legal resources

The VA and many non-government organizations offer free legal assistance to veterans. Services can range from actual document drafting to simple advice. 

One of the best estate-planning resources for veterans is the on-site legal clinics offered at VA facilities. These clinics are temporarily suspended due to COVID-19, but many service providers still provide assistance. A Veterans Justice Outreach Specialist can try to help you find help nearby.

Frequently Asked Questions

Navigating military benefits can be complicated–so much so that there’s a subset of attorneys who specialize only in military and veterans’ issues. If your estate or advance care planning situation feels complicated, you might want to turn to one of them for advice. 

What happens if I die without a will?

When someone dies without a will, their probate estate passes according to their state’s intestacy laws. Most people–even those without formal estate plans–name payable-on-death beneficiaries to bank accounts and other financial accounts. Such designations remove the asset from the probate estate, so those items would pass to the designated beneficiary rather than through the state’s intestacy laws.

If I want a trust for my estate, does it have to be a living trust?

A living trust indicates that you make and use the trust while you’re alive, but it’s only one of many types of trusts. Many people use their will to create a trust and funnel all of their assets into the trust at their death. These are called testamentary trusts, and the legal assistance office might be able to help you establish one.

Do I need a will if my spouse and I own everything jointly?

When two people own an asset, like a house, as joint tenants with the right of survivorship, the asset remains with the surviving co-owner upon the death of the other. As a result, these assets do not pass according to the laws of probate. The surviving owner might need to file an affidavit or do other paperwork to make the transfer official depending on your state.

You might also be able to title your vehicles and bank accounts in a similar way so that they also remain with the surviving owner. 

Even if you do set up everything as joint ownership, it’s still a good precaution to make a will. Even a simple will can catch any assets that you forgot to title jointly to pass them on to your spouse. 

Will JAG help me with my estate and advance care planning?

The military legal assistance offices can advise eligible service members, their families, and veterans about estate and advance care planning, regardless of your branch of service. You can find the office nearest you.

Attorneys through these offices provide legal services at no cost to those eligible, but they typically don’t provide the full range of services of a private attorney. For example, a military attorney won’t represent you in court.

Maximize Your Military Benefits Through Estate and Advance Care Planning

For many military personnel, the benefits accompanying the salary outweigh the salary itself. Medical, housing, and pension benefits are some of the most well-known, and you can maximize their value through careful planning. 

Review your designations and documents as you age to update them to reflect family changes, health conditions, and changing priorities. And, best of all, take advantage of the opportunity to work with an attorney for free through the U.S Armed Forces Legal Assistance program. 

Sources

  1. ​​Department of Defense. “Survivor Benefit Program.” Military Compensation. www.militarypay.defense.gov/Benefits/Survivor-Benefit-Program.
  2. “Gold Star and Surviving Family Member Benefits.” Military OneSource. 15 May 2020. www.militaryonesource.mil/family-relationships/gold-star-surviving-family/gold-star-surviving-family-benefits.
  3. “VA Fiduciary Program.” U.S. Department of Veterans Affairs. 14 December 2021. www.benefits.va.gov/fiduciary/index.asp.

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