If a veteran dies due to a service-connected disability, the surviving spouse is entitled to receive Dependency and Indemnity Compensation, or “DIC.” 38 U.S.C. § 1310(a). Both common-law spouses and traditional spouses can obtain DIC benefits. This article briefly discusses the general marriage requirements for DIC benefits for spouses, with a focus on the common-law provisions and what to do when you live in a state that does not recognize common-law marriage.
VA defines a surviving spouse as a person of the opposite sex who was the spouse of the veteran at the time of death, lived with the veteran from marriage until the veteran’s death, and has not remarried post-death. See 38 U.S.C. § 101(3); see also 38 C.F.R. § 3.50(b) (2013).
VA also requires that the surviving spouse was married to the veteran for one year or more before death. 38 C.F.R. § 3.54(a) (2013). To meet this requirement, the marriage must be legally valid under the laws of the state where the spouse and veteran were married, or where they resided at time of the veteran’s death. Thus, if the couple was married in the traditional way, with a marriage license and some kind of ceremony, and the veteran dies after their one-year anniversary, the spouse would be entitled to DIC benefits. If the surviving spouse is claiming that the couple had a common-law marriage, and common-law marriage is legal in the state where they got married, or where they lived when the veteran died, the spouse would be entitled to DIC benefits as long as the common-law marriage meet all legal requirements of the applicable state.
But what if a spouse claims common-law marriage in a state that does not legally recognize common-law marriages? Well, if the surviving spouse did not know that common-law marriages were invalid in his or her state, then VA may determine that the marriage is “deemed valid” for purposes of DIC benefits, if the marriage meets several other requirements. First, the marriage had to be at least one year before the death of the veteran, or a child was born at any time in the relationship. Second, as noted above, the spouse cannot know that the applicable state did not recognize common-law marriage. Third, the spouse had to continuously live with the veteran before his or her death. Finally, no other surviving spouse of the veteran can have filed a claim for DIC benefits. See 38 C.F.R. § 3.52.
In my experience, if you are claiming common-law marriage in a state that does not recognize it, VA will deny your DIC claim if there were no children born. In other words, if you did not have any kids with the veteran, the regional office will end its analysis there and deny your DIC claim without any consideration of whether the marriage should be deemed valid.
If you believe you were common-law married in a non-common-law-marriage state and have not filed a DIC claim, or have not received an initial decision from the regional office, submit a statement as soon as possible. I recommend using VA Form 21-48 (Statement in Support of Claim) and making it clear to VA that you DID NOT KNOW that common-law marriages were illegal and/or not recognized when you entered into the marriage. Once the statement is filed, VA should accept the statement as true and then determine if your marriage and DIC claim meet all of the other requirements.
If you filed a DIC claim but were denied, file a Notice of Disagreement or VA Form 9 and submit your statement. My office has argued these cases at VA regional offices, the Board of Veterans Appeals, and at the Court of Appeals for Veterans’ Claims. In fact, I recently briefed this issue to the Court and obtained a remand for my client. Even if you submit a statement to VA there is still a chance that it will deny your claim because the regional offices rarely consider if a marriage is “deemed valid” even if the evidence is in the claims file. I strongly encourage you to take advantage of my office’s free consultation and toll free number available on Sean Kendall’s website. Give me a call and let’s win your DIC claim.