Citation Nr: 18141904 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 15-41 701 DATE: October 11, 2018 ORDER Entitlement to recognition as the Veteran's surviving spouse for the purpose of establishing entitlement to Department of Veterans Affairs death benefits is denied. FINDING OF FACT The Appellant and the Veteran were divorced in January 2003; they were not remarried at any time prior to his death in August 2007, and the most probative evidence of record fails to establish the existence of a valid common law marriage. CONCLUSION OF LAW There is no legal basis to recognize the Appellant as a surviving spouse for the purpose of receiving VA death benefits. 38 U.S.C. 101 (3), 103, 1121, 1310, 1541, 5124(a) (2012); 38 C.F.R. 3.1 (j), 3.50, 3.53, 3.54, 3.55, 3.204, 3.205, 3.206, 3.207, 3.208, 3.209, 3.210, 3.211 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria When a Veteran passes away, his or her surviving spouse may be eligible to receive VA death benefits, to include Dependency and Indemnity Compensation (DIC) benefits, death compensation, and death pension. See 38 U.S.C. 1121, 1310, 1541; 38 C.F.R. 3.50 (a). “Surviving spouse” status is a threshold requirement for VA death benefits to include DIC benefits. The appellant has the burden to show status as a “surviving spouse” by a preponderance of the evidence, in order to have standing. See Colon v. Brown, 9 Vet. App. 104, 107-08 (1996). The term “surviving spouse” means a person (1) whose marriage to the veteran was valid under the law of the place of residence at the time of the marriage or when the right to benefits accrued; (2) who was the spouse of a veteran at the time of the Veteran’s death; (3) who lived with the veteran continuously from the date of marriage to the date of the veteran’s death (i.e. continuous cohabitation); (4) and who, except as provided in 38 C.F.R. 3.55, has not remarried or has not since the death of the veteran (and after September 19, 1962) 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. 101 (3); 38 C.F.R. 3.50 (b). Under 38 C.F.R. 3.50 (a), a spouse is a person whose marriage to the veteran meets the requirements of 38 C.F.R. 3.1 (j). VA defines a “marriage” as a marriage valid under the law of the place where the parties resided at the time of marriage, or the laws of the place where the parties resided when the right to benefits accrued. 38 U.S.C. 103 (c); 38 C.F.R. 3.1 (j); Hopkins v. Nicholson, 19 Vet. App. 165, 169 (2005). The VA recognizes “marriages other than by ceremony,” under certain circumstances. 38 C.F.R. 3.205 (a)(6). Under 38 C.F.R. 3.1 (j), a marriage must be valid under 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. 103 (a). For purposes of establishing proof of a common law marriage under state law, the supporting evidence should include affidavits or certified statements of one or both of the parties to the marriage, if living, setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, the period of cohabitation, places and dates of residences, and whether children were born as the result of the relationship. This evidence should be supplemented by affidavits or certified statements from two or more persons who know as the result of personal observation the reputed relationship which existed between the parties to the alleged marriage including the periods of cohabitation, places of residences, whether the parties held themselves out as husband and wife, and whether they were generally accepted as such in the communities in which they lived. 38 C.F.R. 3.205 (a)(6) (2017). In determining whether a marriage is valid, the law of the place where the parties resided will be applied. 38 U.S.C. 103 (a); 38 C.F.R. 3.1 (j). In the absence of conflicting information, proof of marriage which meets the requirements of 38 C.F.R. 3.205 (a)(6) for common law marriage, together with the claimant’s certified statement concerning the date, place and circumstances of dissolution of any prior marriage may be accepted as establishing a valid marriage, provided that such facts, if they were to be corroborated by record evidence, would warrant acceptance of the marriage as valid. 38 C.F.R. 3.205 (b). Generally, VA will accept the written statement of a claimant as proof of marriage, dissolution of a marriage, birth of a child, or death of a dependent. 38 U.S.C. 5124 (a); 38 C.F.R. 3.204 (a)(1). However, VA shall require the types of evidence indicated in 3.205 through 3.211 for purposes of establishing a valid marriage where: the claimant does not reside within a state; the claimant’s statement on its face raises a question of its validity; the claimant’s statement conflicts with other evidence of record; or, there is a reasonable indication, in the claimant’s statement or otherwise, of fraud or misrepresentation of the relationship in question. 38 C.F.R. 3.204 (a)(2). Factual Background and Analysis As noted above, this appeal hinges on whether the Appellant may be recognized as the Veteran’s “surviving spouse” for purposes of establishing entitlement to Department of Veterans Affairs death benefits. For the reasons stated below, the Board finds the most probative factual evidence and legal criteria prohibit the Appellant from being recognized as the “surviving spouse” of the Veteran. In sum, the threshold issues here are (1) whether the Veteran and the Appellant entered into a common law marriage for over one year, which was “valid” under the law of the place of residence at the time of the marriage or when the right to benefits accrued; and if so, (2) whether during this common law marriage the Veteran and the Appellant lived continuously with each other from the date of marriage to the date of the Veteran’s death (i.e. continuous cohabitation). See 38 C.F.R. 3.50 (b), 3.53, 3.54(c). Both requirements must be met for potential entitlement. Further, for DIC purposes, a marriage must have existed for more than one year prior to the Veteran’s death. 38 C.F.R. 3.54 (c). The evidence of record indicates that in the years prior to, and at the time of the Veteran’s death, both the Appellant and the Veteran resided in the State of California. As noted above, a common law marriage must be valid under the law of the place of residence at the time of the marriage or when the right to the benefits accrued (in this case the rights accrued at the time of the Veteran’s death). As a threshold legal matter, the Board notes there is no basis for considering whether a common-law marriage existed in this case, because the State of California does not recognize common-law marriage. See Cal. Fam. Code 300 (a). (Continued on the next page)   Next, the Board notes that the overwhelming evidence fails to show the Veteran and the Appellant cohabitated together continuously for the one-year period prior to his death on August 2, 2007. Specifically, a March 2007 notification of award letter was sent to the Veteran at an address different than the Appellant’s. Thereafter, the evidence indicates the Veteran began residing with the Appellant; however, in July 2007 the Veteran was admitted to the Alvarado Parkway Institute Behavioral Health System for inpatient psychiatric care following a domestic dispute with his son. Treatment notes during that time indicate the Veteran reported he had been living with his ex-wife, the Appellant, for the last three months. Subsequent treatment notes from the San Diego VAMC show that following his discharge from the Alvarado Parkway Institute Behavioral Health System the Veteran was not going to reside with the Appellant, because a restraining order had been put in place. In sum, the evidence fails to establish basic legal requirements for the establishment of a common law marriage under VA law. Specifically, VA law requires common law marriage to be valid under the law of the place of residence. Common law marriage is not valid in California. Further, VA law also requires continuous cohabitation between the Veteran and the Appellant for a period of one year; however, the most probative evidence in this case indicates this requirement was also not met. Although there is also some dispute as to whether the Veteran and Appellant openly held themselves out as husband and wife, the Board need not address this issue, because the greater weight of the evidence fails to show the basic threshold requirements for a valid common law marriage were met in this case. Though the Board does sympathize with the Appellant, and comprehends the tragic nature of this case, relevant law and regulations do not allow for recognition of the Appellant as the surviving spouse. As such, the Appellant’s claim must be denied. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Fraser, Counsel