Does the Department of Veterans Affairs recognize my marriage as valid?

DOES THE DEPARTMENT OF VETERANS AFFAIRS RECOGNIZE MY MARRIAGE AS VALID?

That you were eligible for military spousal benefits does not mean that you will be eligible for VA spousal benefits. The statute that governs veteran’s benefits accepts a marriage for benefits purposes if it was “valid. . . 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.” It also is a law separate from DOMA that says marriage must be between a man and a woman. For that reason, the VA has, at least to date, been rejecting spousal benefits for same sex spouses. See, 38 USC § 101.

The VA does not use the military’s “place of celebration” rule which accepts any marriage from a state with marriage equality regardless of where the participants reside. That means that spousal benefits eligibility will be determined by the law of the state where one married or secured a spousal status even if the VA does not enforce the man/woman requirement of the statute. .

Also, if you  traveled to a recognition states to get married, but live in non- recognition states and will  be living in a non-recognition state when the benefits would take effect the marriage may not qualify for VA purposes.

There are cases pending in the federal courts that may resolve this issue, but until then, we do not know of anyone who has been granted VA spousal benefits for a same sex spouse.

WHAT ARE THE SPOUSAL VETERANS BENEFITS?

If your marriage is accepted by the VA, there are a number of important benefits that the VA offers to spouses or surviving spouses. Some of those benefits are:

  • Transfer of GI Bill benefits
  • Veterans Health Administration healthcare (CHAMPVA)
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  • Dependency and Indemnity Compensation
  • Dependent’s Educational Assistance Program
  • VA Guaranteed Home Loan Program
  • Burial benefits

 SHOULD I APPLY?

Yes, apply because all VA benefits require an application. For each benefit, a valid marriage license or marriage certificate is required to demonstrate a spousal relationship. There are other requirements for specific benefits, time in service, character of discharge, when the veteran served, etc. If your application for a benefit is denied based on the VA’s failure to recognize your marriage, contact a legal organization to get information. Get an advocate who works with VA claims and can assist you with the appeal process if necessary. Don’t give up because someone on the phone or at a desk at the VA says you are not eligible get your paper work into that system. Also, unfortunately, many mainstream veterans groups may not be familiar with these issues.

 Some of these issues may be resolved by the cases still pending in the federal courts. We will be following those developments.

 

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  • published this page in Legal Advocacy 2013-08-15 22:59:44 -0400