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M21-1, Part III, Subpart iii, Chapter 5, Section E – Establishing Marital Relationship in Survivors Cases

Overview

In This Section
This section contains the following topics:
Topic
Topic Name
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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

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
  • the claimant does not reside within a State (as defined in 38 CFR 3.1(i))
  • VA Form 21-686c, Declaration of Status of Dependents (or other prescribed form listed in M21-1, Part III, Subpart ii, 2.B.1.b) contains entries that conflict with one another or raise a question regarding the validity of the marriage that cannot be resolved through
    • telephone contact with the claimant, or (if telephone contact cannot be made)
    • review of documentary evidence already of record, or
  • there is reasonable indication of fraud or misrepresentation on the claimant’s part.
References:  For more information on

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
  • do not develop to determine marital relationship based upon prior marriages, divorces, or deaths, and
  • continue to process the claim.
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.
  • To the extent possible, information about the marital status may be obtained via telephone.
  • If contradictory information cannot be resolved by a review of the evidence of record, the claimant should be asked to furnish dependency evidence as described in 38 CFR 3.205 through 3.211.
Reference:  For more information on development to establish the validity of a marriage, see M21-1, Part III, Subpart iii, 5.B.3.a.

III.iii.5.E.1.c. Establishing a Valid Marriage

  
The table below
  • illustrates the process for establishing a valid marriage for the purpose of determining eligibility for benefits as the surviving spouse of a Veteran, and
  • provides references for a more detailed description of each stage.
Stage
Description/Requirement
References
1
Establish a valid legal or deemed valid marriage
See
2
Satisfy the marriage dates requirement of 38 CFR 3.54.
3
Satisfy the continuous cohabitation requirement of 38 CFR 3.53.

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,
  • obtain all relevant documents, such as the court decree that set aside the divorce, and
  • refer the case to Regional Counsel for an opinion on the issue of the validity of the order setting aside 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.

2.  General Information on the Marriage Dates Requirement

Introduction

  
This topic contains general information on the marriage dates requirement, including

Change Date
December 21, 2017

III.iii.5.E.2.a. Importance of the Marriage Dates Requirement

  
Failure to meet the marriage dates requirement might result in a denied claim from an individual who is otherwise recognized as the Veteran’s legal surviving spouse under State law.

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:
  • the claimant was married to the Veteran for at least one year immediately preceding the Veteran’s death
  • a child was born of the marriage or born to them before the marriage, or
  • the marriage occurred before a certain “delimiting date.”
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

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

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.

3.  Marriage Dates Requirement and Pension Claims

Introduction

  
This topic contains information on how the marriage dates requirement applies to Survivors Pension claims, including

Change Date
December 21, 2017

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:
  • The claimant was married to the Veteran for at least one year or more immediately preceding the Veteran’s death.
  • A child was born
    • of the marriage, or
    • to them prior to the marriage.
  • The claimant was married to the Veteran before the delimiting dates listed in the table below.
When pension eligibility is based on the Veteran’s service during …
Then the delimiting date is …
World War II (WWII)
January 1, 1957.
Korean Conflict
February 1, 1965.
Vietnam Era
May 8, 1985.
Gulf War
January 1, 2001.
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.

III.iii.5.E.3.b. Example 1:  Surviving Spouse Who Meets Marriage Dates Requirements of 38 CFR 3.54

  
Situation:  The Veteran had honorable service from June 3, 1969, to June 2, 1973 (Vietnam Era).  The claimant married the Veteran on August 7, 1973, and remained married until the Veteran died on June 13, 1974.  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 claimant and the Veteran were not married for one year, and they had no children, the claimant would not be eligible was it not for the fact that the marriage occurred before May 8, 1985.
Rationale:  Since the Veteran had Vietnam Era service and the marriage occurred before the applicable delimiting date for Vietnam Era service (May 8, 1985), the claimant meets the marriage dates requirement.
III.iii.5.E.3.c.  Example 2:  Surviving Spouse Who Meets Marriage Dates Requirements of 38 CFR 3.54
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.
III.iii.5.E.3.d.  Example 3:  Surviving Spouse Who Meets Marriage Dates Requirements of 38 CFR 3.54
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
III.iii.5.E.3.e.  Example 4:  Surviving Spouse Who Meets Marriage Dates Requirement of 38 CFR 3.54
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.

4.  Marriage Dates Requirement and DIC Claims

Introduction

  
This topic contains information on how the marriage dates requirement applies to DIC claims, including

Change Date
December 21, 2017

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
  • 38 U.S.C. 1310(a) (deaths entitling survivors to DIC), or
  • 38 U.S.C. 1318 (benefits for survivors of certain Veterans rated totally disabled at the time of death).

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:
  • The claimant was married to the Veteran for at least one year immediately preceding the Veteran’s death.
  • A child was born
    • of the marriage, or
    • to them prior to the marriage.
  • The claimant was married to the Veteran before the expiration of 15 years after the termination of the period of service in which the injury or disease causing the death of the Veteran was incurred or aggravated.
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.

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:
  • The claimant was married to the Veteran for at least one year immediately preceding the Veteran’s death.
  • A child was born
    • of the marriage, or
    • to them prior to the marriage.
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.

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

Change Date
December 21, 2017

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.
Step
Action
1
Were the Veteran and spouse married during the one-year period immediately preceding the Veteran’s death?
  • If yes, the marriage requirement is satisfied.  Process the claim and ignore the remaining step in this table.
  • If no, proceed to Step 2.
Note:  In order to satisfy the one-year marriage requirement, the Veteran and spouse must have been married during the one-year period immediately preceding the Veteran’s death.  Multiple periods of marriage cannot be added together to meet the one-year marriage requirement.
2
Was the date of the original marriage before the appropriate delimiting date?
  • If yes, the marriage requirement is satisfied.
  • If no, the marriage requirement not satisfied.
Important:  Use the date of the original marriage to determine if the dates of marriage requirement (delimiting date in pension cases and 15 years after qualifying service in DIC cases) were met.
References:  For more information on

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).

6.  Continuous Cohabitation

Introduction

  
This topic discusses the continuous cohabitation requirements under 38 CFR 3.53, including

Change Date
December 21, 2017

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.
Situation
Example/Description
The Veteran and claimant were living together as spouses at the time of the Veteran’s death.
—
The Veteran and claimant were living apart at the time of the Veteran’s death but were not estranged.
The Veteran and claimant lived apart for medical, business, or other reasons not involving marital discord.
The Veteran and claimant were living apart at the time of the Veteran’s death due to marital discord, unless the claimant intended to desert the Veteran. Separation by mutual agreement, without intent to desert, does not break the continuity of cohabitation.
Reference:  For a discussion of the impact of the intent to desert a Veteran on a determination of continuous cohabitation, see the court decision in Alpough v. Nicholson, 490 F.3d 1352 (Fed. Cir. 2007).
Separation by mutual consent would constitute desertion if
  • the separation resulted from misconduct of the claimant, or
  • the claimant communicated intent to end the marriage.
Misconduct or the intent of the separation is determined by an analysis of conduct at the time of the separation.
This means that the conduct of the spouse after the separation is not a factor in determining continuous cohabitation and may not be used as a basis for denying benefits.

III.iii.5.E.6.b.  Temporary Separations

  
Separations that occurred during the course of the marriage, regardless of fault, are irrelevant if the parties are no longer estranged at the time of the Veteran’s death.

III.iii.5.E.6.c.Claimant’s Obligation to Reconcile

  
The spouse of a deceased Veteran who was separated from the Veteran due to the fault of the Veteran has no affirmative obligation to attempt to reconcile with the Veteran.  As long as the spouse is not materially at fault in the separation, the continuous cohabitation requirement is met.
Note:  It is irrelevant that the parties lived apart for many years prior to the Veteran’s death, as long as the claimant did not intend to desert the Veteran.

III.iii.5.E.6.d.  Birth of a Child That Is Not the Veteran’s

  
The pending or actual birth of a child to the claimant as the result of relations with a person other than the Veteran is immaterial unless this was the cause of the separation.

III.iii.5.E.6.e.When to Initiate Development

  
Initiate development of the issue of continuous cohabitation if there is an indication, either from the claimant’s statement or other evidence of record, that the Veteran and the claimant were not living together immediately prior to the Veteran’s death.
Exception:  If there is no contradictory evidence of record, accept the claimant’s statement as to the reasons for the separation without further development.

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.
Step
Action
1
Ask the claimant to submit a certified statement on VA Form 21-4138, Statement of Support of Claim, and statements from two persons showing:
  • the date, place, and a full explanation of each separation
  • whether or not there was a written agreement or court order of separation (if so, a copy should be submitted), and
  • whether the claimant or the Veteran ever applied for divorce or annulment (if so, a copy of the decree should be submitted).
Note:  Whether continuous cohabitation is questionable or the claimant failed to complete the continuous cohabitation block on the application for benefits, send a continuous cohabitation development letter.
2
Ask relatives of the Veteran to furnish statements concerning their understanding of the circumstances surrounding the separation if their names and current addresses are of record.

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.
If …
Then …
continuous cohabitation has been established
do not prepare an administrative decision.
continuous cohabitation has not been established
prepare a two-signature administrative decision using the format in M21-1, Part III, Subpart v, 1.A.3.g.
Note:  The Veterans Service Center Manager (VSCM) or Pension Management Center Manager (PMCM) may delegate authority to approve the decision to supervisors not lower than coaches/unit chiefs.
  • a lack of continuous cohabitation has definitely been established, and
  • there is a question of the validity of the marriage
  • deny the claim due to the continuous cohabitation requirement not being met without resolving the question of the legality of the marriage, and
  • include the following statement in the denial notice:  A determination has not been made as to whether you may be recognized as the legal surviving spouse of the Veteran.
Reference:  For more information on decision notification requirements, see M21-1, Part III, Subpart v, 2.B.1.b.

7.  Deemed Valid Marriage

Introduction

  
This topic contains information on the requirements for a deemed valid marriage under 38 CFR 3.52, including

Change Date
December 21, 2017

III.iii.5.E.7.a. Definition:  Deemed Valid Marriage

  
A deemed valid marriage is a marriage that is valid for VA purposes even though a legal marriage does not exist under State law.
Typically, there is no legal marriage under State law because of the existence of some impediment to the marriage, such as a prior undissolved marriage.
Important:
  • A marriage cannot be deemed valid if the impediment is the claimant’s inability to prove the dissolution of his/her own prior marriage.
  • A deemed valid marriage can exist only in connection with a claim for survivors benefits.  It is not possible to “deem valid” the marriage of a live Veteran.

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:
  • the marriage occurred one year or more before the Veteran died or existed for any period of time if a child was
    • born of the marriage
    • born to the parties before the marriage, or
    • born after the death of the Veteran as long as it is established that the Veteran was the parent of the child
  • the surviving spouse entered into the marriage without knowledge of impediment
  • the surviving spouse lived with the Veteran at the time of the Veteran’s death or, if they had separated, the surviving spouse was not at fault in the separation, and
  • no other claimant has established entitlement to VA benefits as the Veteran’s legal surviving spouse.
Notes:
  • If the issue of a deemed-valid marriage arises involving a same-sex relationship, request assistance from Regional Counsel in determining whether a deemed-valid marriage exists.  Follow the instructions in M21-1, Part III, Subpart iii, 5.A.3.e for requesting an opinion from Regional Council.
  • 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 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.

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
  • documented telephone contact, or
  • a letter meeting Section 5103 notification requirements.

III.iii.5.E.7.d.Definition:  Legal Impediment to Marriage

  
A legal impediment to marriage is a condition that prevents a marriage from being recognized under State law.  The following are examples of legal impediments to marriage:
  • prior undissolved marriage of the Veteran
  • one or both parties
    • were under age when married
    • lacked mental capacity to contract marriage, or
    • were too closely related to marry under State law, and/or
  • failure to comply with procedural prerequisites under State law such as blood tests, length of residence, or a marriage license.

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.

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.

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.

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

Change Date
March 16, 2018

III.iii.5.E.8.a.  Requirements to Prove Claimant Lacked Knowledge of Impediment to Marriage

  
It must be established that the claimant did not know of an impediment (factual circumstances or of a law prohibiting the particular marriage) to the marriage at the time of the claimant’s marriage to the Veteran.
The fact that such knowledge was later acquired (either before or after the death of the Veteran) is not relevant.  The determining factor is the claimant’s state of mind at the time of the marriage.

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.

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.
Step
Action
1
Ask the claimant for a signed statement that he/she had no knowledge of an impediment to the marriage.
2
Is there any evidence to the contrary?
  • If yes, treat the claimant’s signed statement as one piece of evidence to be considered in determining whether or not the attempted marriage was entered into without knowledge of the impediment.
  • If no,
    • accept the claimant’s signed statement as proof of fact
    • process the claim, and
    • disregard the remaining step in this table.
3
When all procurable evidence has been obtained, determine the issue based on a preponderance of the evidence (greater weight of the overall evidence).
Note:  The decision as to whether or not the claimant had knowledge of an impediment is a factual determination claims processors must make.
Reference:  For more information on a deemed valid marriage, see 38 CFR 3.205(c).

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.

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

Change Date
December 21, 2017

III.iii.5.E.9.a.  Determining That No Other Claimant Is Entitled

  
Before a defective marriage may be deemed valid, it must be determined that no other claimant is entitled to VA benefits as a legal surviving spouse.

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.
Step
Action
1
Initiate contested claim development procedures.
Reference:  For more information on the development of contested claims, see M21-1, Part III, Subpart vi, 6.B.
2
Determine who is the legal surviving spouse.
Note:  If necessary, request a legal opinion from Regional Counsel.
3
Determine whether a bar to payment of the legal surviving spouse exists.
Note:  In most instances, the bar to payment will be failure to satisfy the continuous cohabitation requirement of 38 CFR 3.53.
Reference:  For more information on continuous cohabitation, seeM21-1, Part III, Subpart iii, 5.E.6.
4
If there is
  • no bar to payments to the legal surviving spouse, then do not attempt to deem as valid the marriage to the other claimant.
  • a bar to payments to the legal surviving spouse, attempt to deem as valid the Veteran’s marriage to the other claimant.
Reference:  For more information on deemed valid marriage, see M21-1, Part III, Subpart iii, 5.E.7.

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.

III.iii.5.E.9.d.  Example 2:  Multiple Claimants to Benefits Exist

  
Situation:  Anne married the Veteran on March 14, 1973.  The Veteran left Anne in 1982 because she abused the Veteran.  It is determined that Anne was at 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:  In this case, Matilda’s marriage to the Veteran may be deemed valid for VA purposes even though Anne is still the Veteran’s legal surviving spouse.
Rationale:  As long as the spouse is not materially at fault in the separation, the continuous cohabitation requirement is met. In this case, however, Anne was at fault. She is therefore not entitled to benefits as the surviving spouse, and Matilda’s marriage to the Veteran may be deemed valid.

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

Change Date
February 19, 2019

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.

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
  • the legal surviving spouse’s income exceeds the applicable MAPR, and
  • there are multiple claimants as the surviving spouse.
Step
Action
1
Deny the claim filed by the legal surviving spouse and advise him/her that pension may be awarded if evidence is received within the same or next calendar year showing income is within limits for pension.
Notes:  For determining the
  • “same calendar year,” add 12 months to the date payment would have been made had it not been barred by excessive income.
  • “next calendar year,” add 24 months to the date payment would have been made had it not been barred by excessive income.
Reference:  For more information on the time limits described above, see 38 CFR 3.660(b)(1).
2
Deny the claim filed by the other claimant but advise him/her that VA will reassess the claimant’s entitlement if he/she submits the required evidence of entitlement after expiration of the time period during which payments may be made under 38 CFR 3.660(b)(1).
3
Pay the other claimant (if otherwise entitled and marriage is deemed valid) effective the original date of claim (subject to 38 CFR 3.31) if he/she submits another claim within 36 months of the date payment would have been made to the legal surviving spouse had entitlement not been barred by excessive income.
Important:  Once the other claimant is awarded benefits, if the legal surviving spouse later claims entitlement to benefits again, treat the claim as a contested claim.
Reference:  For more information on contested claims, see M21-1, Part III, Subpart vi, 6.A–C.

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.
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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