VA benefits are available to people other than the veteran in a few different circumstances. One is to dependents of living veterans, and another is to surviving family members of deceased veterans. In each of these cases, however, benefits are only available based on a qualifying family relationship to the veteran. This is because the family member is only entitled to benefits through the veteran, not in their own right.
The different categories of qualifying family relationships are: 1) spouse 2) surviving spouse 3) child 4) surviving child 5) dependent parent 6) surviving parent. In this blog post we will look at how to qualify as a spouse and surviving spouse for benefits.
In order to qualify as a spouse for benefits, the marriage must be valid, and if required, there must be proof of a valid marriage. Proof of marriage is rarely required, and there some instances where a common law marriage is allowed.
A surviving spouse is one who is the valid spouse of a veteran at the time of the veteran’s death. To receive benefits, the surviving spouse may have to satisfy three requirements: 1) have at least one year of marriage to the veteran 2) continuous cohabitation with the veteran during the marriage and 3) no remarriage after the veteran’s death.
The VA requires that a surviving spouse must have been married to a veteran for at least one year before the veteran’s death in order to qualify for DIC benefits. This requirement applies in cases of common law marriage, but it does not apply if:
- the marriage occurred before or during the veteran’s service,
- if the couple had a child at any time.
- if the marriage occurred within 15 years after service (during which the injury/disease that caused the veteran’s death was aggravated or incurred).
There is also a special situation for a veteran and spouse that are married to each other more than once. Where the surviving spouse has been legally married to the veteran more than once, the date of the original marriage will be used in determining whether the requirement as to date of marriage has been met. For example, if the veteran passed away in July 2014 and was married in January 2014, the surviving spouse would not qualify for VA benefits because that is less than one year. But if they had been previously married, the earlier date will be the one to apply and the surviving spouse is eligible for benefits.
The VA requires continuous cohabitation between a surviving spouse and the veteran to qualify for any VA benefit. Separations that occurred during the marriage do not matter or disqualify from benefits, as long as the couple was no longer estranged at the time of the veteran’s death. The exception to this cohabitation rule is if the separation was the veteran’s fault (either because of misconduct or by their own choosing). There are three situations that satisfy the cohabitation requirement:
- The veteran and spouse were living together as a married couple at the time of the veteran’s death.
- The couple lived apart for a mutually agreed upon separation that does not constitute desertion.
- The couple was living apart at the time of the veteran’s death due to marital discord, but the separation was not the surviving spouse’s fault. Fault is determined based on conduct at the time of separation. Conduct after the separation is not looked at when determining continuous cohabitation.
The surviving spouse should submit the following documentation to the VA certifying the marriage to the veteran until the veteran’s death in order to establish the relationship requirement and be eligible for benefits:
- VA Form 21-534 for dependency and indemnity compensation, death pension, and/or accrued benefits
- A copy of the veteran’s death certificate
- A copy of the veteran’s DD214 discharge certificate
- A copy of the marriage certificate (or proof of marriage)
There are certain circumstances where a “marital-type relationship” may be “deemed a valid marriage” even where there is no legal marriage under the law, as determined by the VA. This rule comes into play when the VA determines that there would have been a valid marriage but for the existence of a legal impediment. The relationship is then deemed a valid marriage and treated as a legal marriage. But this only applies if the one claiming benefits was unaware of the existence of the legal impediment at the time of marriage. But this doesn’t count if someone else has already been awarded VA benefits as the veteran’s legal spouse. And none of this applies unless the claimant has lived with the veteran either 1) for one year before the veteran’s death if they had no children, or 2) for any length of time if they have a child in common.
And lastly, this may seem obvious, but any spouse who intentionally and wrongfully caused the death of the veteran is not entitled to benefits through the veteran’s death.
