Citation Nr: 22045367 Decision Date: 08/10/22 Archive Date: 08/10/22 DOCKET NO. 95-03 049 DATE: August 10, 2022 ORDER Recognition of the appellant as the Veteran's surviving spouse for the purpose of establishing eligibility for Department of Veterans Affairs (VA) benefits is granted. FINDING OF FACT The Veteran and the appellant were married under South Carolina common law as of 2003, and they continuously cohabitated from 2003 until the Veteran's death in January 2005. CONCLUSION OF LAW The criteria for recognition of the appellant as the surviving spouse of the Veteran for the purpose of establishing eligibility for VA benefits have been met. 38 U.S.C. §§ 101, 103, 1102, 1304, 1541, 5107; 38 C.F.R. §§ 3.1, 3.50, 3.53, 3.54, 3.205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1965 to July 1967. Unfortunately, he died in January 2005. The appellant contends that she is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision issued in May 2017 by a VA Regional Office (RO). In March 2022, the appellant testified at a Board hearing before the undersigned Acting Veterans Law Judge. A copy of the transcript of the hearing is associated with the record. Entitlement to recognition of the appellant as the Veteran's surviving spouse for the purpose of establishing eligibility for VA benefits. The appellant seeks recognition as the Veteran's surviving spouse for the purpose of establishing eligibility for VA benefits. VA benefits may be paid to the surviving spouse of a veteran if certain requirements are met. 38 U.S.C. §§ 1304, 1310, 1311, 1318, 1541. A surviving spouse is a person who was the spouse of a veteran at the time of the veteran's death, and 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 spouse. 38 U.S.C. § 101(3); Haynes v. McDonald, 785 F.3d 614, 616 (Fed. Cir. 2015) (rejecting the argument that the married-at-the-time-of-death requirement should be excused because the divorce was precipitated by the veteran's abusiveness); Marrero v. Gober, 14 Vet. App. 80, 82 (2000) (holding that the appellant was not the veteran's spouse because they divorced). A "surviving spouse" status is a threshold requirement for dependency and indemnity compensation (DIC) benefits, accrued benefits claims, and death pension benefits. For a person to establish recognition as a surviving spouse of a veteran, there must be evidence of a valid marriage to the veteran under the laws of the appropriate jurisdiction. See Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). VA's applicable statute and regulations define 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). A valid marriage may be established by various types of documentary evidence together with the claimant's certified statement concerning the date, place and circumstances of dissolution of any prior marriage, provided that such facts, if they were to be corroborated by the evidence, would warrant acceptance of the marriage as valid. 38 C.F.R. § 3.205(a). In cases involving alleged common law marriages, there must be proof of a common law marriage for the purpose of receiving VA benefits. Supporting evidence of common law marriage 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. 38 C.F.R. § 3.205(a). In this case, the record reflects that the appellant and Veteran lived together in South Carolina from 2003 until the Veteran's death. See October 2014 statements from J.L., C.H., and F.P. (indicating that the Veteran and appellant lived together in 2003 in South Carolina and lived together continuously until the Veteran's death, and held themselves out to be married). They were married in July 2004. See Marriage Certificate, submitted by the Veteran in June 2004. Their July 2004 marriage lasted for less than one year, did not take place within 15 years of the Veteran's separation from active service, and there was no child born of the marriage; therefore, the appellant may not be recognized as the Veteran's surviving spouse for VA purposes based on their July 2004 marriage. See 38 C.F.R. § 3.54. Notably, under South Carolina law, common law marriage is recognized prior to July 24, 2019. See Stone v. Thompson, 428 S.C. 79, 833 S.E. 2d 266, 270 (S.C. 2019) (declaring that "no individual may enter into a common law marriage in South Carolina after the date of this opinion," July 24, 2019, but declining to "undo[ ]" common law marriages that "heretofore were considered valid"). Under South Carolina law: Common-law marriage is formed when the parties contract to be married, either expressly or impliedly by circumstance . The key element in discerning whether parties are common-law married is mutual assent: each party must intend to be married to the other and understand the other's intent. Some factors to which courts have looked to discern the parties' intent include tax returns, documents filed under penalty of perjury, introductions in public, contracts, and checking accounts. Appellate courts have previously recognized two lines of cases regarding common-law marriage. The first holds that a party proves a common-law marriage by a preponderance of the evidence. The second relies on "a strong presumption in favor of marriage by cohabitation, apparently matrimonial, coupled with social acceptance over a long period of time." This presumption, like common-law marriage itself, is based on a conception of morality and favors marriage over concubinage and legitimacy over bastardy. It can only be overcome by "strong, cogent, satisfactory or conclusive evidence" showing the parties are not married. This [Supreme Court of South Carolina] has held that once a common-law marriage becomes complete, "no act or disavowal" can invalidate it. Id. at 270-71 (internal citations and quotations omitted). As such, the question in this case is whether the Veteran and appellant were properly married under South Carolina common law for at least one year prior to the Veteran's death in January 2005. Turning to the evidence, in August 2004, the Veteran first reported to VA his July 2004 marriage to the appellant. See August 2004 VA Form 21-686c, Declaration of Status of Dependents; July 2004 marriage certificate, submitted to VA in August 2004. In a February 2005 VA Form 21-534, Application for DIC benefits, the appellant reported that she and the Veteran were married in July 2004. In an October 2014 statement, the Veteran's daughter, A.S., stated that the Veteran and the appellant "lived together down south in 2003 until a little after 2004 when they moved to New York they got married in 2005." In an October 2014 statement, S.D. stated that she had known the Veteran and the appellant for many years. She stated that they dated while living in New York and then relocated to South Carolina back in 2004 where they purchased a home and were in the process of adopting two kids. She stated that she saw "them get married after the Veteran finally was able to get his strength back from being ill for so long." In October 2014 and September 2017 statements, J.L. stated that she had know the Veteran and the appellant as a couple since 2002. They presented themselves as husband and wife and lived together in New York and South Carolina until his death. In October 2014 and September 2017 statements, C.H. stated that the Veteran and the appellant were residents of South Carolina from 2003 to 2005, as husband and wife. In an October 2014 statement, F.P. stated that she met the Veteran and the appellant when they lived in South Carolina from 2003 and 2005, and they were introduced to her as a married couple. In December 2014, the appellant submitted a real estate title and an affidavit filed with a state court in South Carolina, indicating that the Veteran and the appellant purchased a property together in South Carolina in July 2004. The appellant also submitted an IRS Form 1040, filed in 2005, in which she filed a joint tax return for 2004 with the Veteran as her spouse. During the March 2022 Board hearing, the appellant testified that she and the Veteran were married in 2004 and cohabitated in New York and South Carolina for 15 years prior to being married. She stated that they moved to South Carolina around 2001, and were considered married under common law in South Carolina. She stated that they started living together in New York in 1989. She testified that their friends and family recognized them as married prior to 2004. She testified that they were actually married before the 2004 ceremony. The Board finds the appellant's testimony to be credible and highly probative. Based on this evidence, and resolving all reasonable doubt in favor of the appellant, the Board finds that the appellant was married to the Veteran under South Carolina common law in 2003, more than a year prior to the Veteran's January 2005 death. This is based on the evidence that the appellant and the Veteran cohabitated in South Carolina beginning in 2003 and represented to others that they were married. Thus, the evidence shows that the Veteran and the appellant both had the necessary intent to be married to each other, as is required for a common law marriage under South Carolina law. See Stone, supra. As the Veteran and the appellant were married under South Carolina common law at least one year prior to the Veteran's death, the criteria for recognition of the appellant as the Veteran's surviving spouse have been met and the appeal is granted. 38 C.F.R. §§ 3.1(j), 3.50, 3.205. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thomas, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.