Citation Nr: 1751676 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 13-31 372 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to recognition as the Veteran's surviving spouse for purposes of establishing eligibility to VA nonservice-connected death benefits. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Ripplinger, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from August 1969 to March 1971. The Veteran died in April 2012 and the appellant contends that she is his surviving spouse for the purposes of VA death benefits. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 administrative decision issued by the Department of Veterans Affairs (VA) Pension Management Center in Milwaukee, Wisconsin. Jurisdiction over the claims file is currently held by the VA Regional Office (RO) in Louisville, Kentucky. The appellant testified before the Board at a Travel Board hearing in September 2016. A transcript of this hearing is of record. FINDINGS OF FACT 1. The Veteran and appellant began living together in the fall of 2009. 2. The Veteran and appellant resided together for more than one year prior to the Veteran's death. 3. The appellant lacked knowledge that common-law marriages are not recognized in the commonwealth of Kentucky. 4. The appellant lacked knowledge of the Veteran's current marriage at the time she entered into a common-law marriage with the Veteran. 5. There is no information of record showing that a claim has been filed by a legal surviving spouse who has been found to be entitled to gratuitous death benefits. CONCLUSION OF LAW The appellant is entitled to recognition as the surviving spouse of the Veteran for purposes of VA death benefits. 38 U.S.C.A. § 101(3), 103, 5107(b) (West 2014); 38 C.F.R. §§ 3.50, 3.52, 3.53, 3.54, 3.102 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant and the Veteran married in February 1977 and divorced in August 1991. They had one child of the marriage. In April 2002, the Veteran married [REDACTED]. According to the appellant's September 2016 testimony, the Veteran and [REDACTED] separated no later than 2004. The appellant began living with the Veteran in the fall of 2009. According to the Veteran's testimony, a minister performed a marriage ceremony for the Veteran and the appellant at the Veteran's behest around February 2012, although no license was procured. The Veteran initiated divorce proceedings with [REDACTED] in April 2012, and the Veteran passed away that same month. The law provides that VA death benefits may be paid to a surviving spouse who was married to a veteran: (1) one year or more prior to a veteran's death, or (2) for any period of time if a child was born of the marriage, or (3) for any period of time if a child was born to them before the marriage. 38 U.S.C.A. §§ 1102, 1304, 1541; 38 C.F.R. § 3.54. The term "surviving spouse" means a person who was the spouse of the veteran at the time of a veteran's death, and who lived with the veteran continuously from the date of marriage to the date of a veteran's death (except where there was a separation which was due to the misconduct of, or procured by, a veteran without the fault of the spouse in the case of temporary separations) and who has not remarried or (in cases not involving remarriage) has not since the death of a veteran lived with another person and held himself or herself out openly to the public to be the spouse of such other person. See 38 U.S.C.A. § 101(3); 38 C.F.R. § 3.50. For purposes of VA benefits, a marriage means a marriage valid under 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 C.F.R. § 103(c); 38 C.F.R. § 3.1(j). In this case, the parties (the Veteran and the appellant) resided in Kentucky. The appellant has the burden to establish her status as claimant. Sandoval v. Brown, 7 Vet. App. 7, 9 (1994). Where an attempted marriage is invalid by reason of legal impediment, the VA law and regulations allow for certain attempted marriages to be "deemed valid" if certain legal requirements are met. Basically, such an attempted marriage will be "deemed valid" if: (a) the attempted marriage occurred one year or more before the Veteran died (or for any period of time if a child was born of the purported marriage); 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 his death; and (d) no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits. 38 U.S.C.A. § 103(a); 38 C.F.R. § 3.52. In cases in which there is an impediment to entering into a common-law marriage, if the appellant was unaware of the impediment, then an otherwise invalid common-law marriage could be deemed valid. Colon v. Brown, 9 Vet. App. 104 (1996). Turning to the facts of the case, the Board determines that the appellant qualifies as the Veteran's surviving spouse. During the September 2016 hearing, the appellant testified that she and the Veteran began living together in Kentucky in 2009 and stayed together until the Veteran's death in 2012. Common-law marriages may not be formed in Kentucky, and VA has determined that the requirement of a marriage ceremony by a jurisdiction that does not recognize common-law marriage constitutes a "legal impediment" to such a marriage for purposes of 38 U.S.C.A. § 103(a). VAOPGCPREC 58-91; Colon 9 Vet. App. at 107. The first question is therefore whether the appellant was aware of the impediment that common-law marriages may not be formed in Kentucky. The appellant testified at the September 2016 hearing that she believed Kentucky recognized common-law marriages. Because there is no information to the contrary, the Board accepts her testimony as proof of that fact. See Colon 9 Vet. App. at 107-08 . While the legal requirements vary by jurisdiction, typically, all of the following elements must be present to establish a common-law marriage: (1) an explicit or inferred agreement between the parties to be married; (2) cohabitation for some period of time; (3) holding each other out to the public as husband and wife. M21-1MR III.iii.5.C.12.d. Granting the appellant the benefit of the doubt, the appellant and the Veteran appear to have had an inferred agreement that they were married. See 38 C.F.R. § 3.102. The appellant referred to the Veteran as her husband, the couple rented property in both their names, and although they did not share a bank account, the appellant handled the Veteran's finances. In addition, the Board must consider whether the appellant was aware of the legal impediment to a common-law marriage, namely the Veteran's current marriage to [REDACTED]. At the September 2016 hearing, the appellant provided conflicting testimony regarding when she first learned of the Veteran's continued marriage to [REDACTED], testifying first that she found out about the marriage after "about six months" of living with the Veteran and taking care of him. Later, she testified that she found out the Veteran was still marriage after a phone call between the Veteran and [REDACTED] "maybe in fall of . . . 2011 maybe or maybe 2012." Although the accounts differ, the Board finds the appellant was not aware of the Veteran's marriage to [REDACTED] at the time the appellant entered into a common-law marriage with the Veteran, i.e. when the appellant and the Veteran began living together in the fall of 2009. The remaining question is whether a claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits. The Veteran's legal wife at the time of his death, [REDACTED], filed a claim for dependency and indemnity compensation, death pension, and burial benefits in March 2017. The Board finds, however, that [REDACTED] does not qualify as a "surviving spouse" because [REDACTED] and the Veteran signed a separation agreement in April 2012. Thus, she did not live with the Veteran continuously from the date of marriage to the date of death (and the record does not indicate their separation was due to misconduct of the Veteran). In sum, the Board finds the attempted common-law marriage meets the criteria for a valid marriage between the Veteran and the appellant. The appellant alleges the marriage began in 2009 and that she continuously cohabited with the Veteran from that time until his death. Furthermore, the appellant was unaware of the impediments to marriage in 2009 when the common-law marriage began. Finally, a claim has not been filed by a legal surviving spouse who has been found to be entitled to gratuitous death benefits. Thus, the appellant qualifies as a surviving spouse. ORDER Entitlement to recognition as the Veteran's surviving spouse for purposes of establishing eligibility to VA nonservice-connected death benefits is granted. ____________________________________________ M. H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs