Legal Question in Military Law in California

My spouse recently passed away, retires military army veteran. We were married 47yrs. Never divorced or legally separated. We didn't live in the same household. The VA asked the question. If we continuously lived together until his death. Why would they asked that if we were still legally married. Regardless I backed him all his military years and received a department of army certificate, but he stated he was single. It was a yes or no question so I said yes for the reason we were still legally married. I was a little confused.

Asked on 11/14/15, 9:49 am

1 Answer from Attorneys

Edward Beckham Attorney Edward B. Beckham

As a general observation, the Code of Federal Regulations addresses the issue of the element of continuous cohabitation in establishing an individual as a surviving spouse of a veteran.

In particular 38 CFR 3.50 establishes requirements for determining that a "surviving spouse." The determination includes, under 38 CFR 3.5(b), that the surviving spouse be an individual of the opposite sex who continuously lived with the veteran from the date of marriage to the date of the veteran's death and has not (after September 19, 1962), or since the veteran’s death, lived with another person of the opposite sex and held himself or herself out openly to the public to be the spouse of such other person. Additionally, the surviving spouse cannot be remarried.

With regard to the continuous cohabitation requirement there are some exceptions indicated, including that “there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse.”

There is further, specific discussion, regarding the “Continuous Cohabitation” requirement and exceptions at 38 CFR 3.53.

The above is general information and is not an extension of legal advice. Your best course of action would be to quickly consult with an attorney, who has familiarity with veteran’s benefits law, and request a legal consultation regarding the facts and specifics of your case.

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Answered on 11/14/15, 10:30 am

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