In This Section

This section contains the following topics:

Introduction

This topic contains information on establishing a valid marriage in survivors cases including

• valid marriage requirement
• claimants whom the Department of Veterans Affairs (VA) recognized as the Veteran’s spouse during the Veteran’s lifetime
• establishing a valid marriage
• when a surviving spouse attempts to set aside divorce, and
• when a statement of remarriage is not required for DIC cases.

Change Date

December 11, 2024

VII.i.2.D.1.a.  Valid Marriage Requirement

A claimant filing for survivors 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 3.205–3.211 only if

• the claimant does not reside within a State (as defined in 38 CFR 3.1(i))
• VA Form 21-686c, Application Request to Add and/or Remove Dependents, (or other prescribed form listed in M21-1, Part II, Subpart iii, 1.A.1.a) 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

• establishing the validity of a marriage, see M21-1, Part VII, Subpart i, 2.A same-sex marriage, see Veterans Benefits Administration (VBA) Letter 20-15-16, Administration of Same-Sex Spousal Benefits
• determining whether documentary evidence of marriage is required, see M21-1, Part VII, Subpart i, 2.A.2.b, and
• deemed valid marriage requirements, see
  • M21-1, Part VII, Subpart i, 2.D.7, and
  • 38 CFR 3.52.

VII.i.2.D.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.

Note:  When filing a claim, the surviving spouse does not have to provide information as to the legality of their marriage to the Veteran if, prior to the Veteran’s death, the Veteran and spouse established a valid marriage under 38 CFR 3.1(j) and 3.50(b), which made the spouse an established dependent on the Veteran’s award.

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 3.205–3.211.

Reference:  For more information on development to establish the validity of a marriage, see M21-1, Part VII, Subpart i, 2.A.3.

VII.i.2.D.1.c.  Establishing a Valid Marriage

The table below describes 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.

VII.i.2.D.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 District Counsel for an opinion on the issue of the validity of the order setting aside the divorce.

A determination by District 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 VII, Subpart i, 2.D.6.

VII.i.2.D.1.e.  When a Statement of Remarriage is Not Required for DIC Claims

A statement of remarriage is not required for Dependency and Indemnity Compensation (DIC) claims when the surviving spouse was married to the Veteran at the time of the Veteran’s death and

• was at least 55 years of age at the time of the Veteran’s death and the effective date of DIC is January 5, 2021 or later, or
• was at least 57 years of age at the time of the Veteran’s death and the effective date of DIC is January 1, 2004 or later. 

Reference:  For more information on remarriage, see M21-1, Part VII, Subpart i, 2.E.

Introduction

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

• importance of the marriage dates requirement
• marriage dates requirement stipulations
• when the marriage dates requirement is a consideration, and
• definition of a child born of the marriage.

Change Date

October 14, 2022

VII.i.2.D.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.

VII.i.2.D.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.

Exception:  For a same-sex surviving spouse who was not married to the Veteran for at least one year immediately preceding the Veteran’s death, but the marriage occurred on or before June 26, 2017, follow the procedures in M21-1, Part VII, Subpart i, 2.D.11 to determine if the marriage date requirement is met.

References:  For more information on

• a child born of the marriage, see M21-1, Part VII, Subpart i, 2.D.2.d, and
• children of same-sex marriages, see M21-1, Part VII, Subpart i, 3.B.6.b.

VII.i.2.D.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 more information on how the marriage dates requirement applies to

• Survivors Pension claims, see M21-1, Part VII, Subpart i, 2.D.3
• DIC entitlement, see M21-1, Part VII, Subpart i, 2.D.4
• multiple marriages to a Veteran, see M21-1, Part VII, Subpart i, 2.D.5, and
• a marriage between individuals of the same-sex, see M21-1, Part VII, Subpart i, 2.D.11.

VII.i.2.D.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 District Counsel opinion.

Reference:  For more information on requesting a legal opinion, see M21-1, Part VII, Subpart i, 1.A.3.d-e.

Introduction

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

• requirements Survivors Pension claimants must meet
• example 1 of a surviving spouse who meets marriage date requirements of 38 CFR 3.54
• example 2 of a surviving spouse who meets marriage date requirements of 38 CFR 3.54
• example 3 of a surviving spouse who meets marriage date requirements of 38 CFR 3.54, and
• example 4 of a surviving spouse who meets marriage date requirements of 38 CFR 3.54.

Change Date

October 14, 2022

VII.i.2.D.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 bullets below 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.

Exception:  For a same-sex surviving spouse who was not married to the Veteran for at least one year immediately preceding the Veteran’s death, but the marriage occurred on or before June 26, 2017, follow the procedures in M21-1, Part VII, Subpart i, 2.D.11 to determine if the marriage date requirement is met.

Use the table below to determine the delimiting dates by service period.

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.

VII.i.2.D.3.b.  Example 1:  Surviving Spouse Who Meets Marriage Date 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, 2020.

Result:  Since the claimant and the Veteran were not married for one year, and they had no children, the claimant would not be eligible if 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.

VII.i.2.D.3.c.  Example 2:  Surviving Spouse Who Meets Marriage Date 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, 2020.

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 if 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.

VII.i.2.D.3.d.  Example 3:  Surviving Spouse Who Meets Marriage Date 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, 2020.

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 if not for the fact that they were 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.

VII.i.2.D.3.e.  Example 4:  Surviving Spouse Who Meets Marriage Date Requirements 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 if not for the fact that they were 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.

Introduction

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

• laws under which DIC is payable, and
• DIC under
  • 38 U.S.C. 1310(a), and
  • 38 U.S.C. 1318.

Change Date

October 14, 2022

VII.i.2.D.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).

VII.i.2.D.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 bullets below 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.

Exception:  For a same-sex surviving spouse who was not married to the Veteran for at least one year immediately preceding the Veteran’s death, but the marriage occurred on or before June 26, 2017, follow the procedures in M21-1, Part VII, Subpart i, 2.D.11 to determine if the marriage date requirement is met.

Reference:  For the definition of the term “child born of the marriage,” see M21-1, Part VII, Subpart i, 2.D.2.d.

VII.i.2.D.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 bullets below 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.

Exception:  For a same-sex surviving spouse who was not married to the Veteran for at least one year immediately preceding the Veteran’s death, but the marriage occurred on or before June 26, 2017, follow the procedures in M21-1, Part VII, Subpart i, 2.D.11 to determine if the marriage date requirement is met.

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 VII, Subpart i, 2.D.2.d.

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

• effect of more than one marriage to a Veteran, and
• example of multiple marriages.

Change Date

December 21, 2017

VII.i.2.D.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

• delimiting dates, see M21-1, Part VII, Subpart i, 2.D.3.a, and
• dates of marriage requirement, see 38 CFR 3.54.

VII.i.2.D.5.b.  Example:  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).

Introduction

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

• elements of continuous cohabitation
• temporary separations
• claimant’s obligation to reconcile
• birth of a child that is not the Veteran’s
• when to initiate development
• obtaining evidence to establish continuous cohabitation, and
• administrative decisions when continuous cohabitation is at issue.

Change Date

November 20, 2024

VII.i.2.D.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.

VII.i.2.D.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.

VII.i.2.D.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.

VII.i.2.D.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.

VII.i.2.D.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.

VII.i.2.D.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.

VII.i.2.D.6.g.  Administrative Decisions When Continuous Cohabitation Is at Issue

Use 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 VI, Subpart i, 1.B.1.b.

Introduction

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

• definition of deemed valid marriage
• requirements for a deemed valid marriage
• obtaining evidence to establish a deemed valid marriage
• definition of legal impediment to marriage
• overcoming legal impediments
• surviving spouse not at fault in separation, and
• administrative decisions when the validity of a marriage is at issue.

Change Date

October 14, 2020

VII.i.2.D.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 their 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.

VII.i.2.D.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
  • to the parties before the marriage, or
  • 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, and
  • 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 District Counsel in determining whether a deemed-valid marriage exists.  Follow the instructions in M21-1, Part VII, Subpart i, 1.A.3 for requesting an opinion from District Counsel.
• 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 VII, Subpart i, 2.D.8.

VII.i.2.D.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.

VII.i.2.D.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 underage 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.

VII.i.2.D.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 VII, Subpart i, 2.D.8 and 9.

VII.i.2.D.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.

VII.i.2.D.7.g.  Administrative Decisions When the Validity of a Marriage Is at Issue

Use the table below when an administrative decision is required to determine whether a marriage can be deemed valid.

Introduction

This topic contains information on how the lack of knowledge of an impediment to marriage is relevant in deemed valid marriage cases, including

• requirements to prove claimant lacked knowledge of impediment to marriage
• acceptable evidence to establish that claimant had no knowledge of impediment
• steps for determining whether a claimant lacked knowledge of impediment, and
• perceived common law marriage in a State that does not recognize common law marriages.

Change Date

March 16, 2018

VII.i.2.D.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.

VII.i.2.D.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 they 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.

VII.i.2.D.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).

VII.i.2.D.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 they were 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 more information on a Veteran or surviving spouse not living in a State recognizing common law marriages, see M21-1, Part VII, Subpart i, 2.B.

Introduction

This topic contains information on cases in which more than one person files a claim as surviving spouse, including

• determining that no other claimant is entitled
• when more than one person files a claim as a surviving spouse
• example 1 of multiple claimants to benefits exist, and
• example 2 of multiple claimants to benefits exist.

Change Date

April 30, 2021

VII.i.2.D.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.

VII.i.2.D.9.b.  When More Than One Person Files a Claim as a Surviving Spouse

Follow the steps in the table below when multiple persons file a claim as surviving spouse.

VII.i.2.D.9.c.  Example 1:  Multiple Claimants to Benefits Exist

Situation:  Anne married the Veteran on March 14, 1973.  Anne left the Veteran in 1982 due to abuse from the Veteran.  It is determined that Anne was without fault in the separation.  The Veteran married Matilda on September 29, 1983.  The marriage to Anne was never dissolved.  The Veteran died on June 3, 2020.  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 the Veteran was free to marry.

Rationale:  There is no bar to payment to the legal surviving spouse.  Since the surviving spouse 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 VII, Subpart i, 2.D.9.d.

VII.i.2.D.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 Anne abused the Veteran.  It is determined that Anne was at fault in the separation.  The Veteran married Matilda on September 29, 1983.  The Veteran’s marriage to Anne was never dissolved.  The Veteran died on June 3, 2020.  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.  Anne is therefore not entitled to benefits as the surviving spouse, and Matilda’s marriage to the Veteran may be deemed valid.

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

• how a legal surviving spouse’s non-entitlement impacts multiple-claimant cases
• actions to take when a legal surviving spouse’s income exceeds pension limits, and
• example of a claim in which the legal surviving spouse’s income exceeds pension limits.

Change Date

July 26, 2019

VII.i.2.D.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 their 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 more information on the time period during which payments may be made, see M21-1, Part VII, Subpart i, 2.D.10.b.

VII.i.2.D.10.b.  Actions to Take When a Legal Surviving Spouse’s Income Exceeds Pension Limits

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.

VII.i.2.D.10.c.  Example:  Claim in Which the Legal Surviving Spouse’s Income Exceeds Pension Limits

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 3.53 is 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 to 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 income was within the limit for the income year extending from Apriil 5, 2019, to April 30, 2020.

Reference:  For more information on the continuous cohabitation requirement, see 38 CFR 3.53.

Introduction

This topic contains information on how the marriage dates requirement applies to survivor benefits for same-sex surviving spouses, including

• when a marriage between same-sex individuals does not meet the one year marriage requirement
• required elements for the duration of a marriage between individuals of the same-sex to be considered satisfied
• evidence to establish that a same-sex couple
  • cohabitated beyond the marriage dates, and
  • held themselves out to the public in a committed relationship
• granting additional allowance for DIC to same-sex surviving spouse when the Veteran was totally disabled for eight years
• granting or denying claims involving duration of marriage requirements
• example of when
  • same-sex couple cohabitated and in a committed relationship one year prior to death
  • Veteran and same-sex surviving spouse recorded a civil union
  • Veteran and same-sex surviving spouse married after June 26, 2017
  • Veteran and same-sex surviving spouse did not cohabitate for one year
  • Veteran was totally disabled for eight years, and
  • Veteran was totally disabled for eight years but the additional DIC allowance cannot be paid, and
• language to include in
  • letters when granting or denying benefits to same-sex survivors, and
  • the development letter to same-sex survivors. 

Change Date

November 20, 2024

VII.i.2.D.11.a.  When a Marriage Between Same-Sex Individuals Does Not Meet the One Year Marriage Requirement

Certain same-sex surviving spouses have faced a legal impediment in qualifying for survivor benefits when their marriage to the Veteran does not meet the one year marriage date requirement due to unconstitutional laws.

Instruction of the Secretary 01-22- Instructions for Determining Whether Same-Sex Surviving Spouses Satisfy Duration of Marriage Requirements signed on October 11, 2022, allows the VA to recognize the duration for a marriage between individuals of the same-sex as fulfilling statutory and regulatory marriage requirements for Survivors Pension and DIC when the surviving spouse married the Veteran on or before June 26, 2017, and provides verification that they

• were married to the Veteran at the time of the Veteran’s death, and
• cohabitated with the Veteran and held themselves out to the public as being in a committed relationship for a minimum of one year prior to the Veteran’s death.

Important:  If the Veteran and the same-sex surviving spouse were married after June 26, 2017, the marriage dates requirement of 38 CFR 3.54 apply.

Reference:  For more information on the evidence required for cohabitation and holding themselves out to the public, see M21-1, Part VII, Subpart i, 2.D.11.c and d.

VII.i.2.D.11.b.  Required Elements for the Duration of a Marriage Between Individuals of the Same-Sex to Be Considered Satisfied

The table below describes the required elements for the duration of a marriage between individuals of the same-sex to be considered satisfied even though they were married less than a year prior to the Veteran’s death.  

References:  For more information on establishing that the same-sex surviving spouse and the Veteran

• cohabitated for the required amount of time, see M21-1, Part VII, Subpart i, 2.D.11.c, and
• held themselves out as married for the required amount of time, see M21-1, Part VII, Subpart i, 2.D.11.d.

VII.i.2.D.11.c.  Evidence to Establish That a Same-Sex Couple Cohabitated Beyond the Marriage Dates

Evidence that may prove a Veteran and a same-sex surviving spouse held themselves out to the public as cohabitating in a committed relationship akin to that of marriage includes

• lease agreements
• joint bank statements
• utility bills
• tax returns
• insurance forms
• employment records, and
• any other document requiring the individual to indicate marital status.

VII.i.2.D.11.d.  Evidence to Establish That a Same-Sex Couple Held Themselves Out to the Public in a Committed Relationship

To establish that the Veteran and a same-sex surviving spouse held themselves out to the public in a committed relationship akin to that of marriage initiate development for

• VA Form 21-4170, Statement of Marital Relationship, and
• two copies of VA Form 21P-4171, Supporting Statement Regarding Marriage to be completed by two people who know as the result of personal observation the relationship that existed between the parties.

The evidence must provide information which covers the duration of time required for an associated benefit.

Reference:  For more information on the language to use in the development letter see M21-1, Part VII, Subpart i, 2.D.11.n.

VII.i.2.D.11.e.  Granting Additional Allowance for DIC to Same-Sex Surviving Spouse When the Veteran Was Totally Disabled for Eight Years

A similar application of the Instruction of the Secretary 01-22 shall be afforded to a same-sex surviving spouse who seeks an additional monthly allowance for DIC payable under 38 U.S.C 1311(a)(2), if at the time of the Veteran’s death

• the Veteran was in receipt of, or entitled to receive, compensation for a service-connected (SC) disability that was rated totally disabling (including a rating based on individual unemployability) for a continuous period of at least eight years immediately preceding death, and
• the same-sex surviving spouse and the Veteran cohabitated and held themselves out to the public as being in a committed relationship for those same eight years.

Note:  The additional DIC allowance can only be granted under the Instruction of the Secretary up until June 26, 2025, because the marriage between individuals of the same-sex had to take place on or before June 26, 2017.

VII.i.2.D.11.f.  Granting or Denying Claims Involving Duration of Marriage Requirements

Follow the table below for action to take when granting or denying a claim when the duration of marriage is at issue. 

Note:  If the Veteran and the same-sex survivor were never married, the table above does not apply.  See example in M21-1, Part VII, Subpart i, 2.D.11.h.

Reference:  For more information on the language that should be included in the grant or denial letters, see M21-1, Part VII, Subpart i, 2.D.11.m.

VII.i.2.D.11.g.  Example:  Same-Sex Couple Cohabitated and in a Committed Relationship One Year Prior to Death

Situation:  The Veteran and the same-sex surviving spouse were married on June 26, 2017.  The Veteran died on July 21, 2017.  Evidence shows that the Veteran and the same-sex surviving spouse cohabitated and held themselves out in a committed relationship since December 1, 2009.

Result:  The marriage date requirement is considered met for Survivors Pension or DIC.

Rationale:  The marriage took place on or before June 26, 2017, and the evidence shows that the Veteran and the same-sex surviving spouse held themselves out in a committed relationship and cohabitated at least one year prior to the Veteran’s death.

VII.i.2.D.11.h.  Example:  Veteran and Same-Sex Surviving Spouse Recorded a Civil Union 

Situation:  The Veteran and the same-sex survivor recorded a civil union on March 3, 2016.  The Veteran died on May 18, 2020.  Evidence shows that the Veteran and the same-sex survivor cohabitated and held themselves out in a committed relationship since February 1, 2015.  They were never married.

Result:  The same-sex survivor will be considered a surviving spouse if the civil union is considered a deemed valid marriage for VA purposes.

Rationale:  VA may determine whether a marriage is considered a deem valid marriage under 38 U.S.C 103(a), with the assistance of District Counsel as outlined in VBA Letter 20-15-16.  VA may only take additional evidence into consideration and hold the marriage duration as satisfied when there is an underlying finding that a marriage, including those which have been deemed valid took place on or before June 26, 2017.

VII.i.2.D.11.i.  Example:  Veteran and Same-Sex Surviving Spouse Married After June 26, 2017

Situation:  The Veteran and the same-sex surviving spouse were married September 1, 2019.  The Veteran died on July 21, 2020.  Evidence shows that the Veteran and the same-sex surviving spouse cohabitated and held themselves out in a committed relationship since March 1, 2018.

Result:  The same-sex surviving spouse will not qualify for Survivors Pension or DIC.

Rationale:  The date of marriage between the Veteran and the same-sex surviving spouse is after June 26, 2017.  In order to qualify for benefits the marriage has to meet the requirement of 38 CFR 3.54 due to the date of marriage.

VII.i.2.D.11.j.  Example: Veteran and Same-Sex Surviving Spouse Did Not Cohabitate for One Year

Situation:  The Veteran and the same-sex surviving spouse were married on April 1, 2015, in a state which recognizes a marriage between individuals of the same-sex.  The Veteran died on June 30, 2015.  Evidence shows that the Veteran and the same-sex surviving spouse began cohabitation on November 1, 2014.

Result:  The same-sex surviving spouse does not qualify for Survivors Pension or DIC.

Rationale:  The marriage duration element will not be considered satisfied because cohabitation was not for at least one year prior to the Veteran’s death.

VII.i.2.D.11.k.  Example: Veteran Was Totally Disabled for Eight Years

Situation:  The Veteran and the same-sex surviving spouse were married on July 17, 2015.  The Veteran died on December 13, 2015, after being rated 100 percent SC since January 25, 2006 (over eight years).  Evidence shows that the Veteran and the same-sex surviving spouse began cohabitation and held themselves out as being in a committed relationship since February 1, 2006.

Result:  The marriage duration element will be considered fulfilled, and the additional monthly allowance for DIC can be granted.

Rationale:  The evidence shows that the couple cohabitated and held themselves out as being in a committed relationship for the same eight year period that the Veteran was rated 100 percent SC prior to death.

VII.i.2.D.11.l.  Example: Veteran Was Totally Disabled for Eight Years but the Additional DIC Allowance Cannot Be Paid

Situation:  The Veteran and the same-sex surviving spouse were married on September 3, 2023.  The Veteran dies on August 26, 2025, after being rated 100 percent SC since April 17, 2016 (over eight years).  Evidence shows that the Veteran and the same-sex surviving spouse began cohabitation and held themselves out as being in a committed relationship since August 1, 2006.

Result:  The marriage duration element was met because they were married for over a year.  The additional monthly DIC allowance would not be paid.

Rationale:  Although the evidence shows that the couple cohabitated and held themselves out as being in a committed relationship for the same eight consecutive years of the Veteran’s 100 percent SC rating, the date of death of the Veteran is after June 26, 2025, which is after the date the grace period expires.

VII.i.2.D.11.m.  Language to Include in Letters When Granting or Denying Benefits to Same-Sex Survivors

Use the table below to determine the appropriate language to include in the letter to the claimant under the How Did We Make Our Decision heading when survivor benefits are granted or denied for marriage duration issues between individuals of the same-sex. 

VII.i.2.D.11.n.  Language to Include in the Development Letter to Same-Sex Survivors

Use the table below to determine the appropriate language to include in the development letter requesting evidence of cohabitation and proof that the same-sex couple held themselves out to the public in a committed relationship akin to that of marriage. 

Reference:  For more information on the evidence required for cohabitation and holding themselves out to the public, see M21-1, Part VII, Subpart i, 2.D.11.c and d.