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What constitutes a "spouse" in Virginia for purposes of survivor

benefits?...
What constitutes a "spouse" in Virginia for purposes of survivor benefits?
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Answered in 4 minutes by:
2/1/2014
TJ, Esq.
TJ, Esq., Attorney
Category: Family Law
Satisfied Customers: 12,480
Experience: JD, MBA
Verified
Hello and thank you for the opportunity to assist you. My name is XXXXX XXXXX I will do my very best to answer your legal questions.

However, for clarification, what do you mean by "survivor benefits"? Are you referring to general inheritance laws, or are you referring to something specific such as rights to health benefits, Social Security, etc.? I just need you to be a little more specific since "survivor benefits" could mean many different things.

Also, please note that Virginia does not allow common law marriage. However, if a person were married at common law in a state that does allow it, then Virginia recognizes it. Can you be more specific about your particular situation?
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Customer reply replied 3 years ago

Referring to Social Security survivor benefits. Couple lived together in Virginia for 15 years, one child, never formally married.


 

Hello again.

Unfortunately, the couple would not be considered married. As mentioned earlier, Virginia does not allow common law marriage. Accordingly, Social Security would not consider them married, and the surviving partner would not be entitled to survivor benefits.

Here is case law about common law marriage in VA:

Although Virginia does not recognize domestic common-law marriages, it does extend comity to such unions “valid under the laws of the jurisdiction where the common-law relationship was created.” Kelderhaus v. Kelderhaus, 21 Va. App. 721, 725-26, 467 S.E.2d 303, 305 (1996).

So, in order to prove that the couple were married, they'd have to show that the common law marriage was created in another state, and not in VA.

I am truly sorry to give you this bad news, but please understand that it would be unfair to you (and unprofessional of me) to provide you with anything less than an honest response. However, if your concerns were not satisfactorily addressed, then please let me know, and I will be happy to clarify my answer.
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Customer reply replied 3 years ago

This is a Vietnamese couple. What if they were considered married in Viet Nam? (It is the husband/partner that died. He was 62 years old and paid into Social Security for 40 years). Thanks

Hello again.

If they were married in Vietnam and considered husband and wife under Vietnamese law, then they would be considered married per Virginia law. A couple does not have to be married in Virginia to be considered married under Virginia law.
TJ, Esq.
TJ, Esq., Attorney
Category: Family Law
Satisfied Customers: 12,480
Experience: JD, MBA
Verified
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