Wood & Smith Legal Services, LLC

Common Law Spouses & VA Benefits

Wedding CakeA handful of states recognize common law marriage, and in these states questions arise about the benefits due to veterans with spouses married through common law and benefits common law married spouses may be due.  Two frequent questions asked by veterans and their spouses is:

1. I had a common law marriage to my spouse.  As a service-connected disabled veteran, may I receive VA benefits in order to support my spouse?

2. I would like to file for survivor benefits as a spouse, but I had a common law marriage to a service member.  Am I eligible for VA benefits?

There is no simple answer to these questions, but U.S. law and a VA decision issued last year shed some light on these questions.

What does the law say?

U.S. law provides that a veteran’s “marriage shall be proven as valid for the purposes of all laws administered by the Secretary according to the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided when the right to benefits accrued.”  38 U.S.C. § 103(c).  Basically, this means state law determines whether or not a veteran is or was married.

If your state recognizes common law marriage, your spouse may qualify as a common law spouse for purposes of VA benefits.

What are the requirements for the VA to recognize my common law marriage?

Again, this differs by state.  In Alabama, where our firm is based, the law requires the following:

  1. Capacity to marry
  2. Intent to marry
  3. Establish yourself as married
  4. [C]ohabitation or mutual assumption of marital duties and obligations.

Clear and convincing proof” is required to establish these three elements in Alabama, and this can be a high burden to prove.  For example, in one case, the Court found that even though the veteran’s death certificate listed the veteran as married, the veteran was not actually married at the time of his death.  Other state requirements likely differ from these, and an attorney in your state should be able to inform you of the requirements for a common law marriage in your state.

If your state already recognizes your common law marriage, it will be difficult for the VA to argue that you your marriage does not meet the requirements for a common law marriage in your state.

Decisions on common law marriages

Last year, the U.S. Court of Appeals for the Federal Circuit determined that two marriages in Alabama did not meet the requirements for common law marriages under Alabama law.  The facts of each case will differ, and it is important to remember that even though the VA may be required to recognize a common law marriage for states that also recognize common law marriages, proving the existence of a common law marriage may be very challenging.