BVA9420810 DOCKET NO. 92-25 020 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to recognition as surviving spouse of the veteran for purposes of Department of Veterans Affairs death benefits. ATTORNEY FOR THE BOARD R. A. Caffery, Counsel INTRODUCTION The veteran served on active duty from January 1944 to December 1945. He died in January 1990. This is an appeal from a June 1991 decision by the Department of Veterans Affairs (VA) Regional Office, Muskogee, Oklahoma, that the appellant was not entitled to recognition as surviving spouse of the veteran for purposes of VA death benefits. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that she should be entitled to recognition as surviving spouse of the veteran for purposes of VA death benefits since she and the veteran met all four criteria to establish a common-law marriage in the State of Oklahoma. That is, she and the veteran agreed to care for each other; they lived together from 1974 until the time of his death; they lived in the same house in a mutually exclusive relationship; and they had a joint bank account into which all earnings were deposited and all expenses were met for the veteran and herself. The appellant indicates that the Oklahoma law does not require a woman to assume her husband's name after marriage. It is further maintained that the veteran's children were aware of their relationship and are in agreement that they represented themselves as married to the community. The appellant has cited an Oklahoma case in support of her claim, Matter of Stinchcomb, 674 P. 2d 26 (1983). DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the appellant's claim for recognition as surviving spouse of the veteran for purposes of VA death benefits. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the regional office. 2. The veteran and [redacted] were married in May 1943. They were divorced in September 1946. The veteran and [redacted] were married in October 1946. [redacted] died in May 1965. 3. The veteran and [redacted] were married in October 1967. There is no evidence that they were ever legally divorced. 4. The appellant and veteran began residing together in November 1975 in the State of Oklahoma. They resided together until the time of his death in January 1990. 5. The appellant did not believe that she and the veteran had established a valid common-law marriage. 6. The appellant and veteran did not establish a valid common- law marriage. CONCLUSION OF LAW The appellant was not the lawful spouse of the veteran at the time of his death and her relationship with the veteran cannot be considered a deemed valid marriage. Thus, she is not entitled to recognition as the veteran's surviving spouse for purposes of VA death benefits. 38 U.S.C.A. §§ 101(3), 103(a), 5107 (West 1991); 38 C.F.R. §§ 3.1(j), 3.50(c), 3.52 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that it has found the appellant's claim to be "well grounded" within the meaning of 38 U.S.C.A. § 5107(a); effective on and after September 1, 1989. That is, the Board finds that she has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. I. Background The record reflects that the veteran and [redacted] were married in May 1943 and that they were divorced in September 1946. The veteran and [redacted] were married in October 1946. [redacted] died in May 1965. The record further discloses that the veteran and [redacted] were married in October 1967. There is no evidence that they were ever legally divorced. The veteran's death certificate reflects that he died in January 1990 in Oklahoma City, Oklahoma. It was indicated thereon that he was widowed. The informant was his daughter, [redacted]. There is of record a February 1990 application for VA burial benefits submitted by [redacted] in which she indicated that she had been the individual authorizing the funeral services for the veteran. She stated that she had paid the entire amount of the funeral expenses. VA burial benefits based on the nonservice- connected death of the veteran were later paid to [redacted]. In March 1990 the appellant submitted an application for VA death benefits as surviving spouse of the veteran. She reported that she and the veteran had gotten married in 1975 in Oklahoma City (common law) and that the marriage had ended with the veteran's death in January 1990. She indicated that her prior marriage to Ronald in December 1968 had ended by divorce in 1974. In a statement of marital relationship in August 1990, the appellant indicated that she and the veteran had resided together as husband and wife from November 1975 until January 1990 in Oklahoma City. She provided two statements from acquaintances indicating that she and the veteran had generally been known as husband and wife and that they considered them to be husband and wife. In a November 1990 statement the appellant indicated that she was unaware of any reasons why she and the veteran were not free to marry. She stated that she knew of no legal impediment to their marriage and they lived together from 1974 until the time of his death. In April 1991, in response to her request for additional information from the regional office, the appellant indicated that at the time she and the veteran began residing together, they agreed to take care of one another and that some day they would get married. She indicated that they had not had any real estate. She reported that the reason she had not used the veteran's last name in their joint checking account was that "we were not legally married, we were common law." That had been the reason why they did not have many business transactions together. She stated that all she knew was that she and the veteran had been planning to get legally married if he had lived and they did live together for 15 years or so. The appellant further indicated that she could not find any information concerning a termination of the veteran's marriage to [redacted]. She stated that her stepdaughter had handled the funeral because of the appellant's language difficulties. The appellant stated that she had received a flag at her husband's funeral. In a statement received in July 1991, the veteran's son, [redacted], indicated that the appellant had been his father's common-law wife for some 15 years. She had helped to take care of his father until the time of his death. He related that the veteran had wanted her to have a place to live for as long as she lived and he also wanted her to have his widow's pension. A copy of the veteran's September 1988 last will and testament, submitted in July 1991, reflects that his son, [redacted] and his daughter, [redacted], were named as co-executors of the will. The veteran indicated in his will that he granted a life estate in his home to the appellant for as long as she might live but only as long as she remained a single woman. He stated that in the event she married or lived with a male companion, the life estate would terminate immediately and the house would become part of his estate. He left all the rest and remainder of his property to his children. A VA field examination report dated in March 1992, reflects an interview with the veteran's daughter, [redacted]. She indicated that the veteran had never obtained a divorce from her mother and that she had told the appellant that the veteran was not divorced and that the appellant had known that he was not divorced during their entire relationship. [redacted] stated that she had never considered the appellant to be legally married to her father. She also indicated that the appellant was currently living with another man. In a subsequent statement, the veteran's son, [redacted], indicated that he considered the relationship his father had with the appellant to be the same as a marriage. II. Analysis To be entitled to death benefits as a "surviving spouse" of a veteran, the claimant must have been the veteran's spouse at the time of the veteran's death and have lived continuously with the veteran from the date of their marriage to the date of the veteran's death, except where there was a separation due to the misconduct of, or procured by, the veteran without the fault of the spouse. 38 U.S.C.A. § 101(3). The term "surviving spouse" means a person of the opposite sex who is a widow or widower provided the marriage meets the requirements of 38 C.F.R. § 3.1(j). 38 C.F.R. § 3.50(c). "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 rights to benefits accrued. 38 U.S.C.A. § 103(c); 38 C.F.R. § 3.1(j). Death benefits may be granted when the appellant, without knowledge of any legal impediment, entered into a marriage with the veteran which, but for the impediment, would have been valid, and she thereafter cohabited with him for one year or more immediately before his death or for any period of time if a child was born of the purported marriage or is born of them before such marriage. Such a claimant is not eligible, however, if a claim is filed by a legal surviving spouse of the veteran who is found entitled to such benefits. 38 U.S.C.A. § 103(a); 38 C.F.R. § 3.52. In this particular case, the evidence reflects that the appellant and veteran resided together from November 1975 until the time of the veteran's death in January 1990 in the State of Oklahoma, a State that recognizes common-law marriages. Under Oklahoma law, a party asserting a common law marriage must prove the following elements: an actual and mutual agreement between the spouses to be husband and wife; a permanent relationship; an exclusive relationship, proved by cohabitation as man and wife; and the parties to the marriage must hold themselves out publicly as husband and wife. Matter of Stinchcomb, 674 P.2d 26 (1983). A commom law marriage must be established by evidence that is clear and convincing. Matter of Stinchcomb, at 29. Although the appellant and veteran reportedly agreed to care for each other and maintain a joint bank account, the evidence does not establish that they at any time had an actual and mutual agreement to be husband and wife then and there, as opposed to an intent to form such a relationship in the future. The appellant indicated in her April 1991 statement that they had maintained their joint checking account using their separate names since they were not legally married and that they had planned to get legally married. This information certainly indicates that the appellant did not consider herself to be the actual spouse of the veteran. In his last will and testament, the veteran also did not refer to the appellant as his wife but listed her using her own surname and granting only a life estate in his home for as long as she remained a "single woman." He left all of the rest and remainder of his property to his children. The veteran's will thus indicates a desire on his part to provide a lifetime residence for the appellant but does not indicate that he considered her to be his wife. The Board notes further that the veteran had been married on several occasions and there is no evidence establishing that his most recent marriage, to [redacted], in October 1967 had ever been terminated by divorce or otherwise. This prior, subsisting marriage of the veteran would have constituted a bar to the establishment of any valid marriage, common law or ceremonial, between the veteran and appellant. In any event, the Board is unable to conclude that all of the requirements for a valid common-law marriage in the State of Oklahoma have been met. In particular, as noted previously, the Board does not find that the appellant has established that she and the veteran at any time had an agreement to be married. Rather, the evidence indicates that neither the veteran nor the appellant believed themselves to be actually married to each other. Further, although the appellant indicated she was unaware of any legal impediment to a marriage to the veteran, since the preponderance of the evidence shows that she did not believe that she and the veteran had actually entered into a marriage, the statutory and regulatory provisions relating to a "deemed valid" marriage have no application in this case. 38 U.S.C.A. § 103(a); 38 C.F.R. § 3.52. The Board has carefully reviewed the entire record in this case; however, the Board does not find the evidence to be so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. § 5107. ORDER Entitlement to recognition as the surviving spouse of the veteran for purposes of Department of Veterans Affairs death benefits is not established. The appeal is denied. JAMES R. ANTHONY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.