DIC for Common Law Surviving Spouse
Typically, to qualify for Dependency and Indemnity Compensation (DIC) as a surviving spouse, the spouse must have been married to a Service member who died on active duty or married to a Veteran (for at least one year prior to his death) who died from a service-connected disability. There are a few other exceptions when minor-aged children are involved, but by and large, DIC is designated for the “surviving spouse and minor-aged dependents.” But what about circumstances where the Veteran and “spouse” never married? In states where common law marriages are recognized, as long as the couple meets those requirements, then the VA views them as married and the spouse qualifies for the DIC. But in states that do not recognize common law marriage, or the couple had not been married for one year prior to the Veteran’s death, the spouse claimant may still qualify for DIC benefits[i].
VA General Counsel has established that a lack of residence in a state that does not recognize common law marriage should not be a bar for establishing a DIC claim and VA law states that, “In certain circumstances, the VA may determine a marital-type relationship to be a ‘deemed valid marriage[ii]’ even where no legal marriage was created under state law.” However, most common law DIC claims are not always straight forward, for under VA law, a common law type of relationship would only qualify if the spouse was “unaware of the existence of the legal impediment” at the time of the Veteran’s death.
In developing such a DIC claim, the VA Rater would first have to establish whether the spouse alleges a common law marriage in a state that does not recognize common law marriage, then the surviving spouse would be required to provide a personal statement “as to whether he or she was aware that common law marriages were not recognized in the jurisdiction and the reasons for this understanding.” The spouse would also fill out a Statement of Marital Relationship form[iii] and have at least two individuals who knew the couple each submit a Supporting Statement Regarding Marriage form[iv] attesting to their knowledge of the relationship. Based upon the spouse claimant’s statement and any other evidence of record, the VA Rater will then make a determination on “whether the claimant was without knowledge of the impediment to the marriage.”
According to various Court of Appeals for Veterans Claims decisions[v], the VA is not limited in its ability to conduct full inquiry as required by law[vi] nor does it invalidate the Department’s responsibility to weigh the evidence submitted both as to its probative value and credibility. If the VA Rater determines that the claimant was without knowledge of the impediment to the marriage, the other requirements of a deemed valid marriage are satisfied, and all the elements of a common law marriage are present, then the DIC claim can be established.
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