LAW REVIEW 743

 (September 2007)
CATEGORY: Miscellaneous
Death Gratuity and the “Blended” Military Family

By CAPT Samuel F. Wright, JAGC, USN (Ret.)

In Law Review 182 (The Officer, July-August 2005), CDR Wayne Johnson, JAGC, USN (Ret.), pointed out: “Orphans who are not the children of the deceased and his or her current spouse do not receive any of the death gratuity.” This issue has received attention in the news media in recent months: cases of servicemembers killed in action leaving young children to be cared for by grandparents who are in dire financial straits and receive none of the death gratuity.

When I started my military career, the death gratuity was only $1,000—hardly worth arguing about. After the Sept. 11, 2001, terrorist attacks, Congress raised the amount to $100,000, so now it is a significant issue.

The law as currently written provides for the distribution of the death gratuity; the servicemember has no opportunity to designate a beneficiary, unlike the case of the Servicemembers’ Group Life Insurance (SGLI). Title 10, U.S. Code, section 1477(a), of SGLI provides as follows: “A death gratuity payable upon the death of a person covered by section 1475 or 1476 of this title shall be paid to or for the living survivor highest on the following list: (1) His surviving spouse. (2) His children, as prescribed in subsection (b), in equal shares. (3) If designated by him, any one or more of the following persons: (A) His parents or persons in loco parentis, as prescribed by subsection (c). (B) His brothers. (C) His sisters. (4) His parents or persons in loco parentis, as prescribed by subsection (c), in equal shares. (5) His brothers and sisters in equal shares.” 10 U.S.C. 1477(a) (emphasis supplied).

CDR Johnson has also pointed out that the “blended family” is now quite common in the military. Let us take the hypothetical but entirely realistic SGT Mary Roe. She married Joe Jones just days before she deployed to Iraq, where she was killed in action. She left her two young children with her mother; they are children by an earlier relationship and are not Mr. Jones’ kids. Under 10 U.S.C. 1477(a), as currently written, Mr. Jones gets the $100,000 death gratuity as SGT Roe’s surviving spouse, even if she left written instructions that the money should go to her mother, in trust for the children. Elizabeth Roe, SGT Roe’s mother, has been and will be caring for the two young children; there is no one else available. But she gets none of the death gratuity.

On Feb. 16, Sen. John McCain (RAriz.) introduced S. 663 to address this issue. If enacted, his bill would amend 10 U.S.C. 1477(a) to make “any person designated by the person [the deceased servicemember] in writing” the first priority for the distribution of the death gratuity. I favor this approach and urge support of S. 663.

Let this article and the “horror stories” you may have read serve as another reminder: If you are deploying to a war zone, consult with a judge advocate about all the things you need to do to minimize hardship and disruption for your family during your deployment and in the event of your demise. A judge advocate can draft a will or a power of attorney and can advise you about SGLI beneficiaries, child custody arrangements, and other important issues that will almost certainly arise during your deployment or after your death. Try to do this a few days or weeks in advance; don’t wait until you are on the tarmac at the airport, waiting to board the airplane to fly to Iraq.