38 U.S.C. § 5121

Payment of certain accrued benefits upon death of a beneficiary

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(a) Except as provided in sections 3329 and 3330 of title 31, periodic monetary benefits (other than insurance and servicemen’s indemnity) under laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death (hereinafter in this section and section 5122 of this title referred to as “accrued benefits”) and due and unpaid, shall, upon the death of such individual be paid as follows:(1) Upon the death of a person receiving an apportioned share of benefits payable to a veteran, all or any part of such benefits to the veteran or to any other dependent or dependents of the veteran, as may be determined by the Secretary.(2) Upon the death of a veteran, to the living person first listed below:(A) The veteran’s spouse.(B) The veteran’s children (in equal shares).(C) The veteran’s dependent parents (in equal shares).(3) Upon the death of a surviving spouse or remarried surviving spouse, to the children of the deceased veteran.(4) Upon the death of a child, to the surviving children of the veteran who are entitled to death compensation, dependency and indemnity compensation, or death pension.(5) Upon the death of a child claiming benefits under chapter 18 of this title, to the surviving parents.(6) In all other cases, only so much of the accrued benefits may be paid as may be necessary to reimburse the person who bore the expense of last sickness and burial.(b) No part of any accrued benefits shall be used to reimburse any political subdivision of the United States for expenses incurred in the last sickness or burial of any beneficiary.(c) Applications for accrued benefits must be filed within one year after the date of death. If a claimant’s application is incomplete at the time it is originally submitted, the Secretary shall notify the claimant of the evidence necessary to complete the application. If such evidence is not received within one year from the date of such notification, no accrued benefits may be paid.(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1228, § 3021; Pub. L. 92–328, title I, § 105(b), June 30, 1972, 86 Stat. 395; Pub. L. 97–258, § 3(k)(4), Sept. 13, 1982, 96 Stat. 1065; Pub. L. 98–160, title VII, § 703(1), Nov. 21, 1983, 97 Stat. 1010; Pub. L. 99–576, title VII, § 701(66), Oct. 28, 1986, 100 Stat. 3296; renumbered § 5121 and amended Pub. L. 102–40, title IV, § 402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102–83, § 4(a)(1), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 403–405; Pub. L. 104–275, title V, § 507, Oct. 9, 1996, 110 Stat. 3343; Pub. L. 107–14, § 8(a)(16), June 5, 2001, 115 Stat. 35; Pub. L. 108–183, title I, § 104(a)–(c), Dec. 16, 2003, 117 Stat. 2656.)Editorial NotesAmendments

2003—Subsec. (a). Pub. L. 108–183, § 104(c)(1), struck out comma after “or decisions” in introductory provisions.

Pub. L. 108–183, § 104(a), struck out “for a period not to exceed two years” after “unpaid” in introductory provisions.

Subsec. (a)(1) to (4). Pub. L. 108–183, § 104(c)(2), substituted period for semicolon at end of pars. (1) to (4) and subpars. (A) and (B) of par. (2).

Subsec. (a)(5), (6). Pub. L. 108–183, § 104(b), added par. (5) and redesignated former par. (5) as (6).

2001—Subsec. (a). Pub. L. 107–14 substituted “hereinafter” for “hereafter” in introductory provisions.

1996—Subsec. (a). Pub. L. 104–275 substituted “two years” for “one year” in introductory provisions.

1991—Pub. L. 102–40, § 402(b)(1), renumbered section 3021 of this title as this section.

Subsec. (a). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted “Secretary” for “Administrator” in par. (1).

Pub. L. 102–83, § 4(a)(1), substituted “administered by the Secretary” for “administered by the Veterans’ Administration” in introductory provisions.

Pub. L. 102–40, § 402(d)(1), substituted “5122” for “3022” in introductory provisions.

Subsec. (c). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted “Secretary” for “Administrator”.

1986—Subsec. (a). Pub. L. 99–576, § 701(66)(A), struck out “his” after “entitled at”.

Subsec. (a)(2)(A) to (C). Pub. L. 99–576, § 701(66)(B), substituted “The veteran’s” for “His”.

1983—Subsec. (a)(3). Pub. L. 98–160 substituted “surviving spouse” for “widow” in two places.

1982—Subsec. (a). Pub. L. 97–258 substituted “sections 3329 and 3330 of title 31” for “sections 123–128 of title 31”.

1972—Subsec. (a). Pub. L. 92–328 struck out reference to section 3203(a)(2)(A) of this title.

Statutory Notes and Related SubsidiariesEffective Date of 2003 Amendment

Pub. L. 108–183, title I, § 104(d), Dec. 16, 2003, 117 Stat. 2656, provided that: “The amendments made by subsections (a) and (b) [amending this section] shall apply with respect to deaths occurring on or after the date of the enactment of this Act [Dec. 16, 2003].”

Effective Date of 1972 Amendment

Amendment by Pub. L. 92–328 effective first day of second calendar month which begins after June 30, 1972, see section 301(a) of Pub. L. 92–328, set out as a note under section 1114 of this title.

Notes of Decisions

Cited in 175 cases (23 in the last 5 years), 1992–2025 · leading case: Vda de Landicho v. Brown, 7 Vet. App. 42 (Vet. App. 1994).

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Vda de Landicho v. Brown, 7 Vet. App. 42 (Vet. App. 1994). · cites it 14× “He argued that, pursuant to 38 U.S.C. § 5121 (a), determinations of accrued benefits are to be made only on evidence on file at the time of the veteran’s death, and that the Court’s reference to and reliance on Quarles in support of its ruling allowing the widow to submit…”

Charles L. Breedlove Brenda Breedlove v. Eric K. Shinseki, 24 Vet. App. 7 (Vet. App. 2010). · cites it 12× “On April 30, 2010, in an effort to determine whether Brenda Breedlove meets the status requirements of 38 U.S.C. § 5121 (a), the Court issued an order directing the Secretary to file a response informing the Court as to a decision of the VA Philadelphia Regional Office and…”

Reeves v. Dept. Of Vets. Affairs, 682 F.3d 988 (Fed. Cir. 2012). · cites it 10× “Pursuant to 38 U.S.C. § 5121 , however, certain individuals—typically the surviving spouse—have the right to obtain the accrued benefits that were due and payable to the veteran at the time of his death.”

Sherman E. Morris v. Eric K. Shinseki, 26 Vet. App. 494 (Vet. App. 2014). · cites it 27× “Morris argues that he is entitled to these benefits because he qualifies as an heir of the veteran's estate under Georgia state law and because that state law is not preempted by 38 U.S.C. § 5121 , the Federal statute that narrowly defines—and thus excludes him from—the classes…”

Bonny v. Principi, 16 Vet. App. 504 (Vet. App. 2002). · cites it 19× “An RO decision dated that same month granted accrued benefits to the appellant, pursuant to 38 U.S.C. § 5121 , “payable for one year prior to the veteran’s death.”

Mildred Nolan v. R. James Nicholson, 20 Vet. App. 340 (Vet. App. 2006). · cites it 11× “Nolan was entitled to at the time of his death, rather than the two years provided for in 38 U.S.C. § 5121 (a). R. at 323-24. Her theory underlying this argument was that, but for Mr.”

Sucic v. Wilkie, 921 F.3d 1095 (Fed. Cir. 2019). · cites it 7× “Sucic's non-dependent, adult children do not qualify as accrued benefits beneficiaries under 38 U.S.C. § 5121 (a), we affirm the Veterans Court's denial of their motion for substitution.”

Burris v. Principi, 15 Vet. App. 348 (Vet. App. 2001). · cites it 9× “The Board found that, because the appellant is not the “child” of the deceased veteran for purposes of 38 U.S.C. § 5121 , “[tjhere is no legal basis to award the appellant an increased amount of accrued benefits”.”

Margreit Castellano v. Eric K. Shinseki, 25 Vet. App. 146 (Vet. App. 2011). · cites it 12× “" 38 U.S.C. § 5121 . Exercising his authority to promulgate rules appropriate to carrying out the law, however, the Secretary authorized "[r]eports of hospitalization, treatment or examinations authorized by VA" [hereinafter "VA-authorized reports of treatment"] to be deemed in…”

Hyatt v. Shinseki, 566 F.3d 1364 (Fed. Cir. 2009). · cites it 7× “Hyatt’s claim for accrued benefits under 38 U.S.C. § 5121 . In a July 22, 2008 order, the majority of the Veterans Court, over a dissent, determined that Mrs.”

Barney O. Padgett v. R. James Nicholson, 19 Vet. App. 334 (Vet. App. 2005). · cites it 6× “I see no good reason to disturb the important precedents established by the Court's April 19, 2005, opinion or to deprive a potential accrued-benefits claimant of the benefit of the Court's reversal of the Board of Veterans' Appeals decision denying an award of service…”

Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). · cites it 9× “94-7101 is whether a claimant under 38 U.S.C. § 5121 (1994), for a deceased veteran’s accrued benefits, must present new and material evidence to reopen the veteran’s previously denied claim for benefits, and the issue in No.”

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— 38 U.S.C. § 5121(c) — 1 case

Merritt v. Wilkie, 965 F.3d 1357 (Fed. Cir. 2020).

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