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Common Law And Deemed Valid Marriages And


Berta

Question

In some cases VA will recognize a common law surviving spouse for DIC purposes.

"The laws dictate that to be recognized as the veteran's

surviving spouse for the purpose of establishing entitlement

to VA benefits, the appellant must be a person of the

opposite sex who was the spouse of a veteran at the time of

the veteran's death, and who lived with the veteran

continuously from the date of marriage to the date of the

veteran's death (except where there was a separation which

was due to the misconduct of, or procured by, the veteran

without the fault of the spouse) and has not remarried." 38

U.S.C.A. § 101(3); 38 C.F.R. § 3.50(b)(1).

"Additionally, for a surviving spouse to qualify for benefits,

additional factors must be established by the evidence. DIC

may be paid to a surviving spouse of a veteran who died on or

after January 1, 1957, and who was married to the veteran:

(1) before the expiration of 15 years after the termination

of the period of service in which the injury or disease

causing death was incurred, or aggravated; (2) for one year

or more prior to the veteran's death; (3) for any period of

time if a child was born of the marriage or was born to them

before the marriage." 38 C.F.R. § 3.54.

"A recognized marriage for VA purposes is defined as one which

is valid under the law of the place where the parties resided

at the time of marriage, or the law of the place where the

parties resided when the right to benefits accrued." 38

U.S.C.A. § 103©; 38 C.F.R. § 3.102.

In this BVA decision Common law is further defined as to what evidence is required:

http://www.va.gov/vetapp10/Files6/1043681.txt

“For VA benefits purposes, a marriage means a marriage valid under

the law of the place where the parties resided at the time of

marriage, or the law of the place where the parties resided when

the right to benefits accrued. 38 C.F.R. § 3.1(j)."

"A marriage can be established by several types of evidence,

including a copy or abstract of the public record of marriage, a

copy of the church record of marriage containing sufficient data,

an official report from service department as to marriage which

occurred while the Veteran was in service, the affidavit of the

clergyman or magistrate who officiated, the original certificate

of marriage, and affidavits or certified statements of two or

more eyewitnesses to the ceremony. 38 C.F.R. § 3.205(a)(1).”

What VA means as to “law of the place where the parties resided ...etc.”

means if the state law recognizes Common Law.

For example I was approached regarding a DIC claim for a local widow.

But she was never married to the veteran and NY is not a common law state.She is not the veteran's surviving spouse per VA regulations,not even under any of the other conditions that could have deemed her relationship as a valid marriage.

These other conditions, if met, however would cause the VA to deem this type of relationship as a “valid” marriage as within:

http://www.va.gov/vetapp10/Files2/1018711.txt

In this BVA decision, the spouse, as common law wife of the veteran, was granted

recognized status as surviving spouse of the veteran:

http://www.va.gov/vetapp95/files2/9509716.TXT

She got over that hurdle at the BVA but this case does not reflect whether her DIC claim was successful as it only involved her legal status as a survivor, for VA purposes, that had to be established before any determination on DIC could be made.

GRADUATE ! Nov 2nd 2007 American Military University !

When thousands of Americans faced annihilation in the 1800s Chief

Osceola's response to his people, the Seminoles, was

simply "They(the US Army)have guns, but so do we."

Sameo to us -They (VA) have 38 CFR ,38 USC, and M21-1- but so do we.

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  • HadIt.com Elder

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No "common law' in California.

USAF 1980-1986, 70% SC PTSD, 100% TDIU (P&T)

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  • HadIt.com Elder

None in Florida. If you are living with someone for more than a year or two, or have kids by them it is wise to get married if you care about them and if it is possible.

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