Citation Nr: 18152660 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 09-27 009 DATE: November 23, 2018 ORDER Entitlement to recognition of the Appellant as the Veteran’s surviving spouse for purposes of entitlement to Department of Veterans Affairs (VA) death benefits. FINDINGS OF FACT 1. The Veteran and the Appellant were married in October 2002 and cohabitated thereafter until his death. 2. The Veteran’s divorce from K.D. was finalized in September 2003. 3. The Veteran purportedly married the Appellee, K., in September 2005, in North Carolina. 4. The Veteran died in June 2007 in Massachusetts. CONCLUSION OF LAW The criteria for recognition of the Appellant as the Veteran’s surviving spouse have been met. 38 U.S.C. §§ 101, 103, 1102, 1304, 1541; 38 C.F.R. §§ 3.50, 3.53, 3.54, 3.205, 3.206. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1971 to May 1973. The Veteran died in June 2007. VA death benefits may be paid to a surviving spouse who was married to the Veteran: (1) one year or more prior to the Veteran's death or (2) for any period of time, if a child was born of the marriage, or was born to them before the marriage. 38 U.S.C. §§ 1102, 1304, 1541; 38 C.F.R. § 3.54. One claiming to be the spouse of a veteran has the burden to come forward with a preponderance of evidence of a valid marriage under the laws of the appropriate jurisdiction. See Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). In determining whether or not a person is or was the spouse of a veteran, their marriage shall be proven as valid for the purposes of all laws administered by the Secretary 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. § 103 (c); 38 C.F.R. § 3.1 (j). "Surviving spouse" means a person of the opposite sex whose marriage to the veteran meets the requirements of § 3.1(j) and who was the spouse of the veteran at the time of the veteran's death. 38 C.F.R. § 3.50 (b). Additionally, the spouse must have 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. 38 C.F.R. § 3.50 (b)(1). Finally, the spouse must not have remarried or (since the death of the veteran and after September 19, 1962) lived with another person of the opposite sex and held himself or herself out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50 (b)(2). Nevertheless, where an attempted marriage of a claimant to the veteran was invalid by reason of a legal impediment, the marriage will nevertheless be deemed valid if: (a) the marriage occurred 1 year or more before the veteran died or existed for any period of time if a child was born of the purported marriage or was born to them before such marriage (see 38 C.F.R. § 3.54 (d)); (b) the claimant entered into the marriage without knowledge of the impediment; (c) the claimant cohabited with the veteran continuously from the date of marriage to the date of his or her death as outlined in § 3.53; and (d) no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits other than accrued monthly benefits covering a period prior to the veteran’s death. 38 C.F.R. § 3.52. In September 1971 the Veteran married K.D. in North Carolina. In October 2002 the Veteran married the Appellant, F., in New Hampshire while living in Massachusetts. The Certificate of Marriage indicates that the Veteran had never been married. In September 2003 a Divorce Judgment, was issued finalizing the divorce of K.D. and the Veteran. In September 2005 the Veteran married the Appellee, K., in North Carolina. As noted above, the Veteran died in June 2007. On the Death Certificate, the Appellant is listed as the informant and is indicated to be the wife of the Veteran. Appellant reported that she and the Veteran married in New Hampshire because of their work schedules and because there was no waiting period in New Hampshire. The Appellant has submitted multiple statements of family and acquaintances indicating that she was married to the Veteran until his death. The Appellant has also submitted Income Tax Returns dated in 2003, 2004, 2005, and 2006 that list both she and the Veteran as “married, filing jointly.” The Appellant has further submitted a Comcast bill and an automobile credit statement listing both herself and the Veteran. In a statement dated in November 2007, the Veteran’s sister reported that the Veteran was married to the Appellant and that they lived together until he died in June 2007. She reported that the Veteran stayed in Worcester for a few months prior to his death so that he could be close to the hospital and that his sister could help attend to him while the Appellant was working. It was noted that after the Veteran’s death the Appellant assisted in flying the Veteran’s remains to North Carolina. An obituary of the Veteran lists the Appellant as the Veteran’s widow. The Appellant was appointed the administrator of the Veteran’s estate and, although the Appellee applied for the Appellant to be removed as administrator, the Appellee subsequently withdrew her motion. In a Declaration of Status of Dependents, dated in November 2005, the Veteran identified the Appellee as his spouse. In VA treatment notes the Veteran identified the Appellee as his spouse. In a statement dated in February 2008 the Appellee reported that she was never aware of any legal reason she and the Veteran were not free to marry. She reported that she never heard the Appellant’s name from the Veteran, his sisters, or his friends. Prior to the marriage she indicated that she visited the Veteran in Massachusetts on numerous occasions and never had reason to suspect that a woman lived with him. She reported that the Veteran would also visit her and stay for several weeks or months during the time that she lived in Maryland and then in North Carolina. The Appellant’s name was first mentioned during the last few days before his death. The Appellee reported that she had been told that the Appellant had paid the Veteran to marry her so that she could remain in the country. In a statement dated in March 2008 a representative of the Appellee stated that the Veteran and the Appellant did not live together. Rather the Veteran lived in Massachusetts for part of the year while receiving treatment for cancer and lived with the Appellee the remainder of the year. The Appellant has submitted, through her representative, a section of Massachusetts code that indicates that: If a person, during the lifetime of a husband or wife with whom the marriage is in force, enters into a subsequent marriage contract with due legal ceremony and the parties thereto live together thereafter as husband and wife, and such subsequent marriage contract was entered into by one of the parties in good faith, in the full belief that the former husband or wife was dead, that the former marriage had been annulled by a divorce, or without knowledge of such former marriage, they shall, after the impediment to their marriage has been removed by the death or divorce of the other party to the former marriage, if they continue to live together as husband and wife in good faith on the part of one of them, be held to have been legally married from and after the removal of such impediment, and the issue of such subsequent marriage shall be considered as the legitimate issue of both parents. Mass. Ann. Laws ch. 207, § 6 (LexisNexis 2018). All unmarried persons of 18 years, or older, may lawfully marry, subject to exceptions, in North Carolina. N.C. Gen. Stat. § 51-2(a) (2018). The Appellant is entitled to recognition as the Veteran’s surviving spouse for purposes of entitlement to VA death benefits. The Board acknowledges that the Veteran and his first wife, K.D., were not divorced at the time of his marriage to the Appellant. However, multiple statements of record indicate that the Veteran and the Appellant lived together and held themselves out as married as of the date of the marriage the Veteran to the Appellant. In addition, the record indicates that tax returns were filed by the Veteran and the Appellant from shortly after they were married up to just prior to the Veteran’s death. The Veteran and the Appellant lived in Massachusetts at the time of the marriage and at the time of the Veteran’s death. After the marriage to the Appellant, the Veteran’s divorce from his first wife was finalized and, as the evidence indicates that the Veteran and the Appellant continued to live together in Massachusetts, pursuant to Massachusetts law, the marriage became valid. Although the Veteran and the Appellee were thereafter married in North Carolina, the Veteran did not have the capacity to marry as he was already married in Massachusetts. It is acknowledged that the Veteran attempted to marry the Appellee more than a year prior to his death; however, there is no indication that the Veteran and the Appellee had any children, or cohabitated continuously until the Veteran’s death. As such, entitlement to recognition of the Appellant as the Veteran’s surviving spouse for purposes of entitlement to VA death benefits is granted. M. E. LARKIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel