VETERANS' BENEFITS-ELIGIBILITY OF WIDOWS The act of September 2, 1958, 72 Stat. 1109 (38 U.S.C. 103(a)) provides that a woman shall be entitled as a widow to gratuitous death benefits under the laws administered by the Veterans' Administration if it is established by evidence satisfactory to the Administrator that she, without knowledge of any legal impediment, entered into a marriage with a veteran which but for a legal impediment would have been valid and if certain other statutory requirements are met. The term “legal impediment” as used in the act includes a legal prohibition against marriage between first cousins. The other requirements of the act having been met, a woman who would have entered into a valid common law marriage with her first cousin but for such a prohibition is entitled to benefits, if she satisfies the adjudicating authorities that she did not know of the prohibition against such marriages. Hon. JOHN S. GLEASON, Jr., JUNE 1, 1961. MY DEAR MR. GLEASON: This is with reference to your predecessor's request, pursuant to 38 U.S.C. 211 (b), for an opinion concerning the proper interpretation of 38 U.S.C. 103 (a) as applied to a widow who cohabited with her first cousin, a veteran of World War I. Although the couple lived together as husband and wife for thirty years and had seven children, under State law their relationship of consanguinity prevented the establishment of a valid common law marriage which otherwise would have been effected. The General Counsel of the Veterans' Administration concluded, nevertheless, that if the claimant widow satisfies the adjudicating authorities that she was without knowledge of the legal impediment to a valid common law marriage she may be recognized as a widow for the purpose of obtaining gratuitous benefits under the laws administered by the Veterans' Administration. I agree. Section 103 (a), relating to claims filed by widows of veterans, provides: "Whenever, in the consideration of any claim filed by a woman as the widow of a veteran for gratuitous death benefits under laws administered by the Veterans' Administration, it is established by evidence satisfactory to the Administrator that she, without knowledge of any legal impediment, entered into a marriage with such veteran which, but for a legal impediment, would have been valid, and thereafter cohabited with him for five or more years immediately before his death, the purported marriage shall be deemed to be a valid marriage, but only if no claim has been filed by a legal widow of such veteran who is found to be entitled to such benefits. No duplicate payments shall be made by virtue of this subsection." [Italics supplied.] The claimant lived with her "husband" in Kansas, Minnesota, and Wisconsin. In these three States, marriage between first cousins is prohibited. Gen. Stats. of Kans., 1949, sec. 23-102; Minn. Stats. Ann., 1946, secs. 517.03, 518.01; Wis. Stats. 1959, sec. 245.03 (except where the female has reached the age of 50). Were it not for this prohibition, the claimant would have "entered into," within the meaning of section 103(a), a valid common law marriage under the laws of two of these States. Such a marriage would be recognized for the purpose of obtaining gratuitous benefits under the laws administered by the Veterans' Administration. The claimant cohabited with her husband "for five or more years immediately before his death," and "no claim has been filed by a legal widow of such veteran." Thus, the only substantial question presented is whether the term “legal impediment" in section 103 (a) is limited to the impediment of a prior undissolved valid marriage or whether it also refers to prohibitions against marriage because of the relationship of consanguinity here involved, assuming the claimant can satisfy the adjudicating authorities that she was without knowledge of the prohibition. I am of the opinion that the term, "legal impediment," includes the type of impediment present in this case. The language of section 103 (a) is not in terms limited to any particular legal impediment to a marriage. That language is broad enough to cover the instant situation, and the legis lative history does not suggest a narrower reading. Section 103 (a) was originally enacted as sec. 2(a) of the act of August 28, 1957, Public Law 85-209, 71 Stat. 485 (and becoming sec. 103 (a) of title 38, United States Code, revising, codifying, and enacting the laws relating to veterans' benefits. Act of September 2, 1958, Public Law 85-857, 72 Stat. 1105). The title of the 1957 act indicates its remedial purpose "An Act to liberalize certain criteria for determining eligibility of widows for benefits." This purpose is also evidenced by its legislative history, which discloses that the statute was designed, inter alia, to alleviate hardships sometimes occasioned by the existing requirement that a widow of a veteran establish that she was his legal widow. Examples of the harsh results of the then existing law and the consequent need for remedial legislation were furnished Congress by the Veterans' Administration. See H. Rept. No. 284, 85th Cong., 1st Sess. (1957); S. Rept. No. 849, 85th Cong., 1st sess. (1957). It is true that all of the cases which the Veterans' Administration used as hardship examples involved prior valid and undissolved marriages, and on the basis of these examples it might be reasoned that the primary objective of the statute was to effect a legislative cure for these cases. But to recognize this objective is not to conclude that the statute is limited to such cases to the exclusion of other hardship situations. Rather, the adoption by Congress of the unrestricted language of section 103 (a) in the face of the restricted examples appearing in the legislative history suggests a congressional desire to alleviate analogous hardships should they arise. If Congress had intended to limit the application of this section to impediments arising from prior undissolved marriages, it could easily have done so through the use of appropriate language. Nor is there language elsewhere in section 103 which supports a narrow reading of the term "legal impediment." The provision of section 103 (a) preferring the claim of a legal widow avoids the possibility of double payment, but does not limit the whole section to cases where two "widows" might be claimants. Nor is a literal reading of section 103(a) inconsistent with the provisions of section 103 (c). The latter provides that a marriage shall "be proven as valid for the purposes of all laws administered by the Veterans' Administration 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." The two deal with different problems. Subsection (c) fixes the law which is to govern in determining the validity of marriages; subsection (a) deals with invalid marriages. It is obvious that however subsection (a) is construed it would have no bearing on choice-of-law questions arising under subsection (c). Finally, in my opinion, the phrase in the statute "without knowledge of any legal impediment" is not restricted to lack of knowledge of the factual circumstances which caused the impediment to a valid marriage. Lack of knowledge of a law prohibiting particular marriages is apparently within the scope of section 103 (a). Legal impediments resulting from prior marriages of widow claimants, as well as of their veteran spouses, were referred to by Congress. See H. Rept. No. 284, p. 4, supra. A widow claimant could hardly be without factual knowledge of her own prior marriage. It follows therefore that in such cases the "without knowledge" phrase should cover lack of knowledge of the law prohibiting a marriage and not be confined to lack of knowledge of the factual ground which activated the law. There are other reasons why section 103 (a) should be read without inserting an unnecessary restriction to its scope. One of the primary purposes of the act of September 2, 1958, supra, is to make more uniform the laws administered by the Veterans' Administration. See 104 Cong. Rec. 2251 (1958). To view section 103 (a) as applying only to cases involving impediments arising from a prior undissolved marriage would result in nonuniformity in the operation of the Federal statutes for the benefit of the widows of veterans. First cousins are not within the prohibited degree of consanguinity in more than one-third of the States. See, for example, Calif. Civil Code (1954), sec 59; Gen. Stats. of Conn., Rev. of 1958, sec. 46-1; Ann. Laws of Mass. (1955), Vol. 6A, C. 207, secs. 1, 2; N.J.S.A. (1939), sec. 37:1-1; McKinney's Consol. Laws of N.Y. (1957), Dom. Rel. Law, sec. 5; Gen. Laws of R.I. (1956), secs. 15-1-1, 15-1-2. See also Statutes of All States and Territories on Marriage, Annulment, Divorce (1945) compiled by Indovina and Dal ton. If the prohibition against marriage between first cousins is not encompassed by the term "legal impediment" in section 103 (a), first cousins could be eligible for benefits in some States and not in others.1 The Chairman of the Board of Veterans' Appeals and the Chief Benefits Director assert that violence will be done to State marriage laws and public morality if section 103 (a) is interpreted to include impediments other than those arising from prior undissolved valid marriages. They point out that in two of the States in which the present claimant lived with her first cousin the relationship was incestuous and subject to severe criminal penalties. Gen. Stats. of Kans., 1949, sec. 21-906; Wis. Stats. 1959, sec. 944.06. The difficulty with this argument is twofold. In the first place, it is clear that Congress could not have intended section 103 (a) to preclude claimants who may have offended a State standard of public morality even though the offense is a criminal one. Section 103 (a) is admittedly applicable in cases of bigamy arising from undissolved prior marriages, and bigamy is generally a criminal offense. In the second place, as the facts of this case demonstrate, public morality as defined in State laws varies, and for the Federal government to defer to the State standard would, in all such cases, fly in the face of the statutory policy with regard to uniform benefits. In short, section 103 (a) establishes Federal and not State criteria for determining eligibility for widow's benefits. For the foregoing reasons I conclude that section 103(a) permits the payment of benefits in this case, if the claimant satisfies the adjudicating authorities that she did not know of the legal prohibition against marriage between first cousins. Sincerely, ROBERT F. KENNEDY. 1 This reasoning would not apply where the attempted marriage was to a relative of a degree of consanguinity uniformly prohibited by State marriage laws. 244-574 O - 78 - 5 |