Citation Nr: 1530354	
Decision Date: 07/15/15    Archive Date: 07/21/15

DOCKET NO.  12-32 046	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to recognition of the appellant as the Veteran's surviving spouse for the purpose of establishing entitlement to Department of Veterans Affairs (VA) death benefits.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

L. S. Kyle, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1963 to June 1969.  He died in February 2010.  At the time of his death, he was in receipt of VA benefits.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 decision of the VA Regional Office in St. Petersburg, Florida, which denied entitlement to recognition of the appellant as the Veteran's surviving spouse for the purpose of receiving VA death benefits.

In November 2013, the Board denied entitlement to recognition of the appellant as the Veteran's surviving spouse for the purpose of receiving VA death benefits.  The appellant appealed the decision to the United States Court of Appeals for Veterans Claims (Court).  

In February 2015, the Court issued a memorandum decision that vacated the Board's decision and remanded the matter to the Board.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2014).



FINDINGS OF FACT

The appellant attempted to enter into a marriage with the Veteran in November 2002 without knowledge that such marriage would not be recognized by the jurisdiction in which it took place.  



CONCLUSION OF LAW

The criteria for entitlement to recognition as the surviving spouse of the Veteran for purposes of VA death benefits have been met.  38 U.S.C.A. §§ 101, 103, 1102, 5124 (West 2014); 38 C.F.R. §§ 3.1, 3.50, 3.52, 3.53, 3.54, 3.204, 3.205 (2014). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA benefits may be paid to a surviving spouse who was married to the Veteran one year or more prior to the Veteran's death or for any period of time if a child was born of the marriage.  38 U.S.C.A. § 1102; 38 C.F.R. § 3.54.

The term "surviving spouse" means a person (1) who was married to a Veteran at the time of the Veteran's death; (2) 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 surviving spouse); and (3) who has not remarried or (in cases not involving remarriage) has not since the death of the Veteran lived with another person and held himself or herself out openly to the public to be the spouse of such other person.  38 C.F.R. § 3.50. 

For purposes of VA benefits, the validity of a marriage is determined "according to the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided when the right to benefits accrued."  38 U.S.C.A. § 103(c); 38 C.F.R. §3.1(j).  This includes common law marriage in some jurisdictions.  See 38 C.F.R. § 3.205(a)(6) (setting forth the requirements for proof of marriage in jurisdictions where marriages other than by ceremony are recognized).

Black's Law Dictionary defines a "common law marriage" as a marriage not solemnized in the ordinary way but created by an agreement to marry, followed by cohabitation, a consummated agreement to marry, marriage contract, per verba de praesenti, followed by cohabitation.  Such a marriage requires a positive mutual agreement, permanent and exclusive of all others, to enter into a marriage relationship, cohabitation sufficient to warrant fulfillment of necessary relationship of man and wife, and an assumption of marital duties and obligations.  Id. at 144-45 (5th abridged ed. 1983).

Where an attempted marriage is invalid by reason of legal impediment, it may be "deemed valid" under VA regulations if:  (a) the attempted marriage occurred one year or more before the Veteran died; and (b) the claimant entered into the marriage without knowledge of the impediment; and (c) the claimant cohabited with the Veteran continuously from the date of the attempted marriage until death; and (d) no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits.  38 C.F.R. § 3.52.  

The determination regarding knowledge of a legal impediment is viewed in terms of "what the appellant's state of mind was at the time that the invalid marriage was contracted."  Dedicatoria v. Brown, 8 Vet. App. 441, 444 (1995).  VA General Counsel has held that where an appellant entered into common law marriage without knowledge that such marriage was not recognized by the jurisdiction in which it took place, the legal impediment would not necessarily bar recognition of the marriage for VA purposes.  See Lamour v. Peake, 544 F.3d 1317, 1322 (Fed. Cir. 2008) (citing VA Gen. Coun. Prec. 58-91 (June 17, 1991)).  When a surviving spouse submits proof of marriage and meets the requirements for a deemed valid marriage, VA will accept the surviving spouse's statement that he or she had no knowledge of an impediment to marriage, absent information to the contrary.  38 C.F.R. § 3.205(c).  
If there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be resolved in favor of the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

Here, the appellant asserts that she had no knowledge that the state of Florida did not recognize common law marriage at the time she entered into a mutual agreement with the Veteran to be married, as evidenced by the "casual ceremony" aboard the U.S. documented vessel, the Winged Isle, in November 2002.  She further claims, after this ceremony, she and the Veteran lived together as man and wife, assuming marital duties and obligations.  They later solemnized this marriage with a formal marriage ceremony in January 2010 and continuously cohabitated until his death in February 2010.  

While there is some conflicting evidence regarding the Veteran's belief regarding the validity of their marriage, the appellant has submitted several affidavits attesting to the nature of her relationship with the Veteran, and the Court has essentially found this evidence, as cited in the Board's prior decision, insufficient to show the appellant's state of mind at the time of the "casual ceremony."

 Thus, the evidence is at least in relative equipoise as to whether the requirements of a common law marriage were met, and reasonable doubt must be resolved in the appellant's favor.  Further, there is no evidence that indicates the appellant knew a common law marriage would not be recognized by the state of Florida; therefore, VA must accept her statement regarding the lack of knowledge of legal impediment.  Accordingly, the requirements for a "deemed valid marriage" have been met, and entitlement to recognition as the Veteran's surviving spouse for the purpose of establishing entitlement to VA death benefits is warranted.  




ORDER

Entitlement to recognition of the appellant as the surviving spouse of the Veteran for the purpose of establishing entitlement to VA death benefits is granted.




____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs