Legacy Apportionment Maintenance and Adjustment

Overview

In This Section

This section contains the following topics:

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1. Status of Legacy Apportionments

Introduction

This topic contains information on the status of legacy apportionments, including

• applicability
• exclusion on claims for increase
• handling a claim for increase in a legacy apportionment, and
• elections between apportionment provisions.

Change Date

March 9, 2026

VI.iv.2.D.1.a. Applicability

The procedures in this section apply only to legacy apportionments authorized prior to February 9, 2026.

Note: The policies and procedures reflected in M21-1, Part VI, Subpart iv, 2.C, for maintenance and adjustment of apportionments also apply only to legacy apportionments, except as otherwise noted.

Reference: For more information on the definition of current and legacy apportionments, see M21-1, Part VI, Subpart iv, 2.C.1.a.

VI.iv.2.D.1.b. Exclusion on Claims for Increase

Regulatory changes effective February 9, 2026, limit the availability of apportionments to only new claims for apportionment associated with incarceration or hospitalization.

Legacy apportionments, as defined in M21-1, Part VI, Subpart iv, 2.A.1.b, will be maintained in the status in which they existed on the effective date of those regulatory changes until the conditions warranting the apportionment cease to exist.

Federal regulations no longer provide for claims for increase in a legacy apportionment.

Important: Circumstances may arise requiring adjustment of a legacy apportionment due to a change in the

• primary beneficiary’s entitlement, or
• apportionee’s status or relationship to the primary beneficiary.

References: For more information on

• procedures for adjustment of legacy apportionments, see
• M21-1, Part VI, Subpart iv, 2.C, and
• M21-1, Part VI, Subpart iv, 2.D.2 and 3, and
• cost-of-living adjustments for legacy apportionments, see M21-1, Part X, Subpart v, 2.C.1.

VI.iv.2.D.1.c. Handling a Claim for Increase in a Legacy Apportionment

When an apportionee submits a claim for increase in a legacy apportionment, deny the claim, without further development, on the basis that there is no entitlement to an increased apportionment as a matter of law.

• Advise the claimant that Federal regulations now allow for apportionment associated only with the primary beneficiary’s hospitalization or incarceration.
• A request to apportion benefits on the basis of a new dependent when a legacy apportionment exists for other dependents is a new claim for apportionment that must be adjudicated according to the regulations in effect at the time the claim is received. This type of request is not a claim for increase nor is it categorized as an adjustment.

Important: Denial on this basis is only warranted when it is clear that the claimant is requesting an increase in a legacy apportionment. Otherwise, accept the claim as a new claim for apportionment under the regulations currently in effect and follow the procedures in M21-1, Part VI, Subpart iv, 2.A.

VI.iv.2.D.1.d. Elections Between Apportionment Provisions

An apportionee receiving a legacy apportionment may elect apportionment under current regulations via submitting a new claim for apportionment based on the primary beneficiary’s incarceration or hospitalization. However, once an apportionee elects apportionment under a current provision, any previous legacy apportionment cannot be reinstated.

Example: An apportionee is receiving a legacy apportionment of $400 monthly. The primary beneficiary, who is receiving compensation based on an 80-percent combined disability evaluation, is incarcerated. The apportionee may continue to receive the $400 apportionment, which will be payable until the circumstances warranting the apportionment cease, or may submit a new claim for apportionment based on incarceration as a greater benefit during the period of incarceration. If the apportionment based on incarceration is elected, it will be discontinued upon the primary beneficiary’s release from incarceration, and the legacy apportionment may not be reinstated.

2. Historical Provisions Applicable for Legacy Apportionment Maintenance and Adjustment

Introduction

This topic contains information on historical provisions that are applicable for use in legacy apportionment maintenance and adjustment, including

• criteria for granting a legacy apportionment
• determining the amount of a legacy apportionment, and
• reasonable amount requirement for a legacy apportionment.

Change Date

March 9, 2026

VI.iv.2.D.2.a. Criteria for Granting a Legacy Apportionment

The table below describes the historical provisions for what the evidence of record must have shown before the Department of Veterans Affairs (VA) granted a claim for a legacy apportionment.

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Examples:

• The evidence of record must show the following to justify the continued apportionment of a Veteran’s benefits to an estranged spouse under the provisions of historical 38 CFR 3.450:
• spouse does not reside with the Veteran, and
• Veteran is not providing a reasonable level of support to the spouse.
• The evidence of record must show the following to justify the continued apportionment of a Veteran’s benefits to the child (who is in the custody of a former spouse) under the provisions of historical 38 CFR 3.451:
• child does not reside with the Veteran
• child and former spouse are experiencing financial hardship, and
• apportioning the Veteran’s benefits will not cause undue hardship on the Veteran and the other dependent(s).

VI.iv.2.D.2.b. Determining the Amount of a Legacy Apportionment

Except as noted in the table below, the regulation under which VA granted entitlement to an apportionment dictates the amount of benefits VA may apportion.

Examples:

• Historical 38 CFR 3.450 allowed for the apportionment of “all or part” of a beneficiary’s VA benefits.
• Historical 38 CFR 3.451 “ordinarily” allowed for the apportionment of between 20- and 50-percent of a beneficiary’s VA benefits.

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Important:

• VA typically apportions to a surviving child the amount of additional VA benefits the surviving spouse receives for the child if the
• apportionment was granted under historical 38 CFR 3.450, and
• benefit is DIC or Section 306 or Old Law survivors pension.
• The additional amount of benefits to which a surviving spouse is entitled based on the need of the aid and attendance of another person is not apportionable if the benefit is
• current-law Survivor’s Pension, or
• DIC or Section 306 or Old Law survivors pension and the legacy apportionment was granted under historical 38 CFR 3.450.

VI.iv.2.D.2.c. Reasonable Amount Requirement for a Legacy Apportionment

Historical 38 CFR 3.458(a) provided that an apportionment should not be granted when the total amount payable to the Veteran is so small that it does not allow payment of a reasonable amount to any apportionee.

An apportionment so small that it would do little or nothing to mitigate an apportionee’s need is not considered reasonable.

3. Circumstances Potentially Warranting Legacy Apportionment Adjustment

Introduction

This topic contains information on circumstances potentially warranting legacy apportionment adjustment, including

• circumstances requiring discontinuation of a legacy apportionment
• handling notice that a primary beneficiary and apportionee now reside together
• handling requests for discontinuation of a legacy apportionment submitted by the primary beneficiary
• retroactive increases in a primary beneficiary’s award effective prior to the date an apportionee lost status as a dependent
• out-of-custody children in receipt of DIC that lose status as a dependent
• adjustment of legacy apportionment due to payment of child support, and
• adjustments for other apportionees associated with discontinuation of apportionment due to child support order.

Change Date

March 9, 2026

VI.iv.2.D.3.a. Circumstances Requiring Discontinuation of a Legacy Apportionment

A legacy apportionment must be discontinued when the primary beneficiary’s award is

• discontinued for any reason, or
• reduced to a rate that
• does not allow payment of a reasonable amount to any apportionee, or
• would not (if the apportionment was granted under the provisions of historical 38 CFR 3.451) support a continuation of the apportionment without creating undue hardship on the primary beneficiary.

Discontinue the legacy apportionment effective the same date as the effective date for discontinuance or reduction (whichever applies) of the primary beneficiary’s award.

Important: Before discontinuing a legacy apportionment because it creates undue hardship on the primary beneficiary, determine whether a new apportionment may be granted based on the beneficiary’s incarceration or institutionalization, when applicable.

Reference: For more information on the reasonable amount requirement for legacy apportionments, see M21-1, Part VI, Subpart iv, 2.D.2.c.

VI.iv.2.D.3.b. Handling Notice That a Primary Beneficiary and Apportionee Now Reside Together

Follow the instructions in the table below upon receipt of notice that a primary beneficiary and a dependent to whom VA is apportioning some or all of the primary beneficiary’s benefits under historical 38 CFR 3.450 or 3.451 now reside together.

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References: For more information on

• preparing and issuing decision notices, see M21-1, Part VI, Subpart i, 1.B, and
• decision review rights for contested claims, see M21-1, Part VI, Subpart iv, 2.A.4.g.

VI.iv.2.D.3.c. Handling Requests for Discontinuation of a Legacy Apportionment Submitted by the Primary Beneficiary

A primary beneficiary may request discontinuation of a legacy apportionment. Discontinuation is warranted when the evidence shows that the circumstances originally warranting the apportionment cease to exist. Provide notice of proposed adverse action to the apportionee prior to discontinuation of an apportionee’s award.

References: For more information on

• criteria for granting a legacy apportionment, see M21-1, Part VI, Subpart iv, 2.D.2.a
• preparing and issuing a
• notice of proposed adverse action, see M21-1, Part X, Subpart ii, 3.A, and
• decision notice, see M21-1, Part VI, Subpart i, 1.B, and
• providing decision review rights for contested claims, see M21-1, Part VI, Subpart iv, 2.A.4.g.

VI.iv.2.D.3.d. Retroactive Increases in a Primary Beneficiary’s Award Effective Prior to the Date an Apportionee Lost Status as a Dependent

If increased disability or decreased income requires a retroactive award adjustment from a date prior to the date an apportionee lost status as a dependent, pay the increased benefit to the primary beneficiary, to include any additional allowance for the dependent-apportionee. Exclude, however, the amount previously allocated to the apportionee award through the end of the month in which the apportionee lost status as a dependent.

VI.iv.2.D.3.e. Out-of-Custody Children in Receipt of DIC That Lose Status as a Dependent

Historical 38 CFR 3.461(a) included the following provision.

The surviving spouse's award of dependency and indemnity compensation will be apportioned where there is a child or children under 18 years of age and not in the custody of the surviving spouse.

The legacy apportionment referenced in this regulation is slightly different than other legacy apportionments because it is paid to the out-of-custody child without having initially

• undertaken development to determine the child’s need
• issued notice of proposed adverse action to the primary beneficiary, or
• prepared an administrative decision.

The out-of-custody child, in this case, is entitled to the amount of additional DIC payable to the surviving spouse for a child under the age of 18.

Other differences in apportionments under historical 38 CFR 3.461(a) include the following:

• the discontinuation of an out-of-custody child’s apportionment due to death or marriage does not require a corresponding adjustment of the surviving spouse’s award, and
• the surviving spouse is not entitled to additional benefits for the child through the end of the month in which the child died or married.

Reference: For more information on payments for out-of-custody children, see M21-1, Part XII, Subpart i, 3.C.1.c.

VI.iv.2.D.3.f. Adjustment of Legacy Apportionment Due to Payment of Child Support

Under historical 38 CFR 3.450, an apportionment could not be granted if the primary beneficiary was providing a reasonable level of support to the individual receiving or filing a claim for an apportionment.

When notice is received with objective evidence reflecting that the primary beneficiary is paying child support for the child-apportionee, initiate action to discontinue the legacy apportionment.

• When the primary beneficiary submits evidence regarding the new support order, propose discontinuation of the apportionment.
• Notice of proposed adverse action is not required if the custodian of the child-apportionee was the individual who initially provided evidence showing the payment of child support.
• When discontinuation of the legacy apportionment is warranted under the provisions above, discontinue the legacy apportionment effective the date the primary beneficiary began paying the child support.

VI.iv.2.D.3.g. Adjustments for Other Apportionees Associated With Discontinuation of Apportionment Due to Child Support Order

Follow the instructions in the table below when

• VA must discontinue an apportionment for a child because the primary beneficiary is paying child support, as provided in M21-1, Part VI, Subpart iv, 2.D.3.f, and
• other dependents (such as an estranged spouse) remain entitled to an apportionment of the primary beneficiary’s benefits.

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Reference: For more information on making award adjustments in VBMS-Awards, see the VBMS Awards User Guide.