Overview
In This Section |
This section contains the following topics:
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1. Establishing a Valid Marriage in Survivors Cases
Introduction |
This topic contains information on establishing a valid marriage in survivors cases including
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Change Date |
December 21, 2017 |
III.iii.5.E.1.a. Valid Marriage Requirement |
A claimant filing for death benefits as the surviving spouse of a Veteran must establish that the claimant and the Veteran had a valid marriage for Department of Veterans Affairs (VA) purposes.
In most cases, surviving spouse claimants establish a valid marriage to the Veteran under State law. However, it is also possible under certain circumstances to “deem valid” for VA purposes a marriage which is not valid under State law.
Important: 38 CFR 3.204 (a)(2) requires a claimant to submit the documentary evidence of marriage described in 38 CFR 3.205 through 3.211 only if
References: For more information on
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III.iii.5.E.1.b. Claimants Whom VA Recognized as the Veteran’s Spouse During the Veteran’s Lifetime |
Concede a marital relationship exists when the evidence in VA records, as of the date of the Veteran’s death, establishes the survivor’s relationship with the deceased Veteran. Absent evidence to the contrary in current records
Important: A surviving spouse’s statement of marital status and history may be considered sufficient if the statement does not contain contradictory information and it contains substantially complete information about the marital history of the Veteran and the surviving spouse.
Reference: For more information on development to establish the validity of a marriage, see M21-1, Part III, Subpart iii, 5.B.3.a.
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III.iii.5.E.1.c. Establishing a Valid Marriage |
The table below
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III.iii.5.E.1.d. When a Surviving Spouse Attempts to Set Aside Divorce |
When a claimant who was divorced from the Veteran at the time of the Veteran’s death attempts to establish entitlement as the Veteran’s surviving spouse based on a court decree setting aside or vacating the divorce,
A determination by Regional Counsel that the decree setting aside the divorce is valid means that the claimant was the legal surviving spouse of the Veteran (assuming the marriage can be established in the first place).
Important: No administrative decision is required.
Note: The issue of continuous cohabitation must still be resolved separately.
Reference: For more information on continuous cohabitation, see M21-1, Part III, Subpart iii, 5.E.6.
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2. General Information on the Marriage Dates Requirement
Introduction |
This topic contains general information on the marriage dates requirement, including
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Change Date |
December 21, 2017
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III.iii.5.E.2.b. Marriage Dates Requirement Stipulations |
The marriage dates requirement of 38 CFR 3.54 states that benefits may not be paid to the surviving spouse unless one of the following requirements is met:
Note: When calculating years of marriage pursuant to 38 CFR 3.54, use the date the marriage was performed, not the date the marriage could first be recognized for the purpose of determining entitlement to VA benefits.
References: For more information on
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III.iii.5.E.2.c. When the Marriage Dates Requirement Is a Consideration |
The marriage dates requirement varies with the benefit claimed and is a consideration only when the marriage occurred after the Veteran’s separation from service.
Marriage dates are not an issue if the marriage occurred before or during the Veteran’s service.
References: For information on how the marriage dates requirement applies to
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III.iii.5.E.2.d. Definition: Child Born of the Marriage |
The term child born of the marriage, for purposes of the marriage dates requirement in 38 CFR 3.54, includes a fetus advanced to the point of gestation required to constitute a birth under the law of the jurisdiction in which the fetus was delivered.
Note: If this issue arises, it may be necessary to request a Regional Counsel opinion.
Reference: For more information on requesting a legal opinion, see M21-1, Part III, Subpart iii, 5.A.3.e.
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3. Marriage Dates Requirement and Pension Claims
Introduction |
This topic contains information on how the marriage dates requirement applies to Survivors Pension claims, including
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Change Date |
December 21, 2017
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III.iii.5.E.3.a. Requirements Survivors Pension Claimants Must Meet |
A surviving spouse with potential entitlement to Survivors Pension meets the marriage dates requirement of 38 CFR 3.54 if at least one of the following is true:
Note: When calculating years of marriage pursuant to 38 CFR 3.54, use the date the marriage was performed, not the date the marriage could first be recognized for the purpose of determining entitlement to VA benefits.
Reference: If pension eligibility is based on service during periods of war prior to WWII, see 38 CFR 3.54.
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Situation: The Veteran had honorable service from June 3, 1969, to June 2, 1973 (Vietnam Era). The claimant married the Veteran on January 1, 1986, and remained married until the Veteran died on October 10, 1986. A child was born of the marriage on September 27, 1986. The claimant files a claim for Survivors Pension as the Veteran’s surviving spouse on October 28, 1990.
Result: Since the claimant and the Veteran were not married for one year prior to the Veteran’s death and the applicable delimiting date for Vietnam Era service has passed (May 8, 1985), the claimant would not be eligible was it not for the fact that a child was born of the marriage.
Rationale: Since a child was born of the marriage, the claimant meets the marriage dates requirement.
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Situation: The Veteran had honorable service from June 3, 1969, to June 2, 1973 (Vietnam Era). The claimant married the Veteran on January 1, 1986, and remained married until the Veteran died on October 10, 1990. There were no children born of the marriage. The claimant files a claim for Survivors Pension as the Veteran’s surviving spouse on October 28, 1990.
Result: Since the applicable delimiting date for Vietnam Era service has passed (May 8, 1985), and they had no children, the claimant would not be eligible was it not for the fact that she was married to the Veteran for at least one year immediately preceding the Veteran’s death.
Rationale: Since the Veteran and the claimant were married for at least one year prior to the Veteran’s death, the claimant meets the marriage dates requirement
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Situation: The Veteran had honorable service from June 3, 1991, to June 2, 2002 (Gulf War Era). The claimant married the Veteran on February 12, 2015 (same-sex marriage), and remained married until the Veteran died on April 15, 2016. The claimant files a claim for Survivors Pension as the Veteran’s surviving spouse on May 2, 2016.
Result: Since the applicable delimiting date for Gulf War Era service has passed (January 1, 2001), and they had no children, the claimant would not be eligible were it not for the fact that she was married to the Veteran for at least one year immediately preceding the Veteran’s death.
Rationale: Since the Veteran and the claimant were married for at least one year prior to the Veteran’s death, the claimant meets the marriage dates requirement.
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4. Marriage Dates Requirement and DIC Claims
Introduction |
This topic contains information on how the marriage dates requirement applies to DIC claims, including
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Change Date |
December 21, 2017
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III.iii.5.E.4.a. Laws Under Which DIC Is Payable |
The marriage dates requirement for a DIC claimant differs depending on whether the claimant is potentially entitled to DIC under
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III.iii.5.E.4.b. DIC Under 38 U.S.C. 1310(a) |
A surviving spouse with potential entitlement to DIC under 38 U.S.C. 1310(a)meets the marriage dates requirement of 38 CFR 3.54 if at least one of the following is true:
Note: When calculating years of marriage pursuant to 38 CFR 3.54, use the date the marriage was performed, not the date the marriage could first be recognized for the purpose of determining entitlement to VA benefits.
Reference: For the definition of the term “child born of the marriage,” see M21-1, Part III, Subpart iii, 5.E.2.d.
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III.iii.5.E.4.c. DIC Under 38 U.S.C. 1318 |
A surviving spouse with potential entitlement to DIC under 38 U.S.C. 1318 meets the marriage dates requirement of 38 CFR 3.54 if at least one of the following is true:
Note: There is no delimiting date applicable to DIC benefits paid under 38 U.S.C. 1318.
Reference: For a definition of the term “child born of the marriage,” see M21-1, Part III, Subpart iii, 5.E.2.d.
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5. Marriage Dates: Multiple Marriages to a Veteran
Introduction |
This topic contains information on how multiple marriages to a Veteran may affect a surviving spouse’s ability to meet the marriage requirements that are a factor in determining eligibility to survivors benefits, including
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Change Date |
December 21, 2017
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III.iii.5.E.5.a. Effect of More Than One Marriage to a Veteran |
Follow the steps in the table below to determine how multiple marriages to a Veteran may affect a surviving spouse’s ability to meet the marriage requirements that are a factor in determining eligibility to survivors benefits.
References: For more information on
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III.iii.5.E.5.b. Example of Multiple Marriages |
Situation: The claimant married the Veteran on March 14, 1985. The claimant divorced the Veteran on February 13, 1986. The claimant and the Veteran remarried on September 29, 1989. The Veteran died on August 5, 1990. The surviving spouse files a claim for Survivors Pension on October 3, 1990.
Results: The one-year marriage requirement is not met because the two periods of marriage cannot be added together. However, the claimant does satisfy the marriage dates requirement of 38 CFR 3.54 because the original marriage occurred before the delimiting date for Vietnam Era service (May 8, 1985).
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6. Continuous Cohabitation
Introduction |
This topic discusses the continuous cohabitation requirements under 38 CFR 3.53, including
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Change Date |
December 21, 2017
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III.iii.5.E.6.a.Elements of Continuous Cohabitation |
The claimant must meet the continuous cohabitation requirement of 38 CFR 3.50(b)(1) to qualify as the surviving spouse of a Veteran for VA purposes.
This requirement is most commonly met by virtue of the surviving spouse having lived continuously with the Veteran from the date of marriage to the date of the Veteran’s death; however, the requirement is also met if any of the situations described in the table below occurred.
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III.iii.5.E.6.f. Obtaining Evidence to Establish Continuous Cohabitation |
Follow the steps in the table below to develop for the continuous cohabitation requirement.
Reminder: This procedure should be performed only if there is conflicting evidence concerning the cause of the separation.
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III.iii.5.E.6.g.Administrative Decisions When Continuous Cohabitation Is at Issue |
Follow the procedures in the table below when an administrative decision is required to determine whether the continuous cohabitation requirement has been met.
Reference: For more information on decision notification requirements, see M21-1, Part III, Subpart v, 2.B.1.b.
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7. Deemed Valid Marriage
Introduction |
This topic contains information on the requirements for a deemed valid marriage under 38 CFR 3.52, including
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Change Date |
December 21, 2017
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III.iii.5.E.7.b. Requirements for a Deemed Valid Marriage |
Under 38 CFR 3.52, a marriage may be deemed valid for VA purposes if all of the following requirements are met:
Notes:
Reference: For more information on a deemed valid marriage and the lack of knowledge of an impediment, see M21-1, Part III, Subpart iii, 5.E.8.
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III.iii.5.E.7.c. Obtaining Evidence to Establish a Deemed Valid Marriage |
Initiate development for a deemed valid marriage if it appears there may be an impediment to establishing a surviving spouse’s legal marriage to the Veteran. To request evidence to establish a deemed valid marriage develop with
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III.iii.5.E.7.e.Overcoming Legal Impediments |
Any legal impediments to establishing a valid marriage can be overcome if the claimant satisfies the requirements for a deemed valid marriage.
Reference: For more information on legal impediments, see M21-1, Part III, Subpart iii, 5.E.8 and 9.
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III.iii.5.E.7.f.Surviving Spouse Not at Fault in Separation |
The determination as to whether or not the surviving spouse was not at fault in the separation is made using the same criteria used to establish continuous cohabitation under 38 CFR 3.53.
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III.iii.5.E.7.g. Administrative Decisions When the Validity of a Marriage Is at Issue |
When the deemed valid question is resolved (favorably or unfavorably), prepare a two-signature administrative decision using the format in M21-1, Part III, Subpart v, 1.A.3.g.
A VSCM or PMCM may delegate authority to approve the decision to supervisors not lower than coaches.
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8. Deemed Valid Marriage: Lack of Knowledge of Impediment
Introduction |
This topic contains information on how the lack of knowledge of an impediment to marriage is relevant in deemed valid marriage cases, including
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Change Date |
March 16, 2018
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III.iii.5.E.8.b. Acceptable Evidence to Establish That Claimant Had No Knowledge of Impediment |
Under 38 CFR 3.205(c), the claimant’s signed statement that he/she had no knowledge of an impediment to the marriage should be accepted as proof of the fact unless there is other evidence to the contrary.
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III.iii.5.E.8.c. Steps for Determining Whether a Claimant Lacked Knowledge of Impediment |
Follow the steps in the table below to determine whether a claimant lacked knowledge of an impediment.
Reference: For more information on a deemed valid marriage, see 38 CFR 3.205(c).
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III.iii.5.E.8.d. Perceived Common Law Marriage in a State That Does Not Recognize Common Law Marriages |
In VAOPGCPREC 58-1991, the General Counsel held that if a surviving spouse believed he/she was party to a common law marriage with a Veteran in a State that does not recognize common law marriages, VA must determine whether or not the common law marriage may nevertheless be deemed valid under 38 CFR 3.52.
Reference: For information on a Veteran or surviving spouse not living in a state recognizing common law marriages, see M21-1, Part III, Subpart iii, 5.C.5.
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9. Deemed Valid Marriage: Multiple Claimants
Introduction |
This topic contains information on cases in which more than one person files a claim as surviving spouse, including
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Change Date |
December 21, 2017
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III.iii.5.E.9.b. When More Than One Person Files a Claim as Surviving Spouse |
Follow the steps in the table below in cases in which multiple persons file a claim as surviving spouse.
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III.iii.5.E.9.c. Example 1: Multiple Claimants to Benefits Exist |
Situation: Anne married the Veteran on March 14, 1973. Anne left the Veteran in 1982 because the Veteran abused her. It is determined that Anne was without fault in the separation. The Veteran married Matilda on September 29, 1983. His marriage to Anne was never dissolved. The Veteran died on June 3, 1989. Both Anne and Matilda file claims for Survivors Pension as the surviving spouse of the Veteran.
Result: If Anne is otherwise eligible for pension, Matilda’s marriage to the Veteran cannot be deemed valid, even though Matilda married the Veteran believing he was free to marry.
Rationale: There is no bar to payment to the legal surviving spouse. Since she was without fault in the separation, the continuous cohabitation requirement is met so the subsequent marriage cannot be deemed valid.
Reference: For more information on handling claims in which there are multiple claimants, see M21-1, Part III, Subpart iii, 5.E.9.d.
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10. Deemed Valid Marriage: Multiple Claimants as Surviving Spouse; Legal Surviving Spouse’s Income Exceeds Limits for Pension
Introduction |
This topic contains information on deemed valid marriage cases in which there are multiple claimants and the legal surviving spouse’s income exceeds the limits for pension, including
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Change Date |
February 19, 2019
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III.iii.5.E.10.a. How a Legal Surviving Spouse’s Non-Entitlement Impacts Multiple-Claimant Cases |
If the legal surviving spouse is barred from payment of pension solely because his/her income exceeds the applicable maximum annual pension rate (MAPR) within the requisite time frames, the other claimant’s marriage may be deemed valid.
Reference: For a description of the “requisite time frames,” see M21-1, Part III, Subpart iii, 5.E.10.b.
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III.iii.5.E.10.b. Actions to Take When a Legal Surviving Spouse’s Income Exceeds Limits for Pension |
Follow the steps in the table below when
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III.iii.5.E.10.c. Example: Legal Surviving Spouse’s Income Exceeds Limits for Pension |
Situation: Gary marries the Veteran on March 14, 1966. Bob marries the Veteran on October 28, 1977. The Veteran dies on April 5, 2019. Gary files a claim for Survivors Pension as the Veteran’s surviving spouse on June 23, 2019. Bob files a claim for Survivors Pension as the Veteran’s surviving spouse on June 25, 2019.
Result: Gary’s marriage to the Veteran was never dissolved, so Gary is determined to be the legal surviving spouse. Development reveals that the Veteran deserted Gary. Therefore, the continuous cohabitation requirement of 38 CFR 3.53is met. Gary’s income exceeds the MAPR.
Bob’s income is within the limit, and Bob’s marriage to the Veteran meets all the requirements of a deemed valid marriage except for the requirement that no other claimant be found entitled as legal surviving spouse.
Action: Deny both claims. Advise Bob that he may submit another claim after calendar year 2021. Under 38 CFR 3.660(b)(1), Gary has until January 1, 2022, to submit a claim showing that his income was within the limit for the income year extending from July 1, 2019, to July 1, 2020.
Reference: For more information on the continuous cohabitation requirement, see38 CFR 3.53.
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Change-April-26-2015-Transmittal-Sheet-M21-1III_iii_5_SecE_TS.docx | May 12, 2019 | 38 KB |
3-16-18_Key-Changes_M21-1III_iii_5_SecE.docx | May 12, 2019 | 76 KB |
2-19-19_Key-Changes_M21-1III_iii_5_SecE.docx | May 12, 2019 | 64 KB |
12-21-17_Key-Changes-M21-1III_iii_5_E.docx | May 12, 2019 | 85 KB |
in Chapter 5 Relationship and Dependency, Part III General Claims Process, Subpart iii General Development and Dependency Issues
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