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Question
Berta
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.
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