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Volume 7 - Opinions of Counsel SBEA No. 6

Opinions of Counsel index

Veterans exemption (member of exempt class) (surviving spouse - increased exemption) - Real Property Tax Law, § 458:

The unremarried surviving spouse of a veteran receiving a veterans exemption may increase the amount of the exemption by applying toward the purchase of real property (1) disability payments received but not claimed by the veteran and (2) pension moneys received by the widow unless received as a “dependency allowance.”

We have been asked if the amount of the veterans exemption (Real Property Tax Law, § 458) may be increased to the benefit of the veteran’s unremarried widow, based on disability payments made to him, but not previously claimed by him, and also on pension moneys received by her.

One of the requirements of section 458 is that the property for which exemption is sought must be owned by the veteran or some other person designated in the statute. The spouse or unremarried surviving spouse of a veteran has the same eligibility for the exemption as the veteran. That is, if a deceased veteran would have been entitled to increase his exemption based on the receipt and use of certain moneys during his lifetime, his unremarried surviving spouse is so entitled.

Since disability payments are “eligible funds” within the meaning of section 458 (67 St. Dept. 428 (1946)), had the veteran sought to increase the amount of his exemption during his lifetime based on the purchase of real property with these funds, the exemption could have been increased. Consequently, his unremarried surviving spouse may now do so.

With respect to pension moneys paid to the widow after the death of the veteran, assuming these moneys have not been paid to the widow as a “dependency allowance,” the moneys would presumably constitute eligible funds (3 Op. Counsel SBEA No. 26; 4 id. No. 7). In the latter opinion, we stated that benefits paid pursuant to 38 U.S.C. § 542 were eligible funds. Those moneys were paid to the minor children of a deceased veteran. Pursuant to 38 U.S.C. § 541, a pension may be paid to a surviving spouse of veterans of certain war periods. Assuming that the pension in question is being paid pursuant to this section, it would constitute eligible funds. If the widow can prove that she has “purchased” her property with these funds, the exemption may be increased accordingly.

In addition, the State Comptroller has concluded that pensions granted to a veteran’s widow and minor children are to be considered as eligible funds for purposes of section 458 so as to qualify real property purchased by the widow for the exemption (23 Op.St. Compt. 378 (1967)).

January 31, 1980