Common Law Marriage and Social Security Dependents and Survivor Benefits

Common-law spouses can get Social Security benefits based on their spouses' earnings record.

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In some states, couples that meet certain criteria are considered to have a “common law” marriage even if they never held a religious or civil marriage ceremony.

Are Federal Benefits Available for Common Law Spouses?

Common law spouses and former common law spouses can be eligible for Social Security benefits (dependents and survivors benefits) based on their husband's or wife’s earnings record, if their states' common law marriage requirements are met. This is because the Social Security Administration (SSA) follows state law when determining whether people have a valid marriage.

Which States Allow the Formation of Common Law Marriages?

States that allow common law marriage. The following states still allow for the formation of common law marriages:

  • Alabama
  • Colorado
  • D.C.
  • Iowa
  • Kansas
  • Montana
  • Oklahoma
  • Rhode Island
  • South Carolina
  • Texas, and
  • Utah (but only if validated by a court order).

States that don't allow new common law marriages. These states don't allow the formation of new common law marriages, but if you entered into a common law marriage in one of these states in the past, your common law marriage may still be valid if it was established during the time period listed:

  • Alaska (if entered into between 03/07/39 and 12/31/63)
  • Florida (if entered into before 01/02/68)
  • Georgia (if entered into before 01/01/97)
  • Idaho (if entered into before 01/01/96)
  • Indiana (if entered into before 01/01/58)
  • Michigan (if entered into before 01/01/57)
  • Minnesota (if entered into before 04/27/41)
  • Mississippi (if entered into before 04/5/56)
  • Nevada (if entered into before 03/29/43)
  • New Jersey (if entered into before 12/01/39)
  • Ohio (if entered into before 10/10/91)
  • Pennsylvania (if entered into on or before 01/01/05)
  • South Dakota (if entered into before 07/01/59)
  • Utah (see state law for marriages established 04/27/87 or later), and
  • U.S. Virgin Islands (if entered into before 9/01/57).

New Hampshire. New Hampshire recognizes common law marriage, but only after death of one of the spouses, mainly for the purpose of inheritance and probate. This means that a common law marriage won’t be recognized while both of the parties are still alive, but if your relationship meets all of the following requirements, a "legal" marriage will be established when one of you dies:

  • You lived together for three or more years prior to the death of one partner.
  • You acknowledged one another as husband and wife, and
  • You were generally presumed to be husband and wife in the community.

For the purpose of Social Security survivors benefits, the SSA will recognize a common law marriage that was validly established under the New Hampshire law. Specifically, federal regulations (20 CFR 404.345) state that:

"The relationship requirement will also be met if under state law you would be able to inherit a wife's, husband's, widow's, or widower's share of the insured's personal property if he or she were to die without leaving a will."

International common law marriages. Note that, in most cases, common law marriages cannot be established for relationships that occurred outside of the U.S.

What Are the Requirements for a Common Law Marriage?

The requirements for common law marriage vary between the states, but all states have these criteria in common: you both must have the intent to be married and the legal capability to marry. Most states, but not all, also allow require you to live together.

Basic Requirements

Here are the basic requirements for the creation of a common law marriage; however, your specific state may have additional requirements.

  • You and your partner must have the capability (that is, be old enough and have the mental capacity) to enter a contract for a valid marriage with each other.
  • You must both live in a state that recognizes common law marriages when the marriage contract is entered into.
  • You must both have the intent to marry one another.
  • You must both consider yourselves husband and wife, and
  • You must both agree to be husband and wife from that time on.

Be sure to check with your state’s law to make sure you have met any additional requirements for your common law marriage.

Length of Marriage

Contrary to popular belief, most states do not require that two people stay together for a certain number of years before their relationship is considered a common law marriage; only New Hampshire has a three-year requirement, and New Hampshire common law marriages are only recognized after death.

Cohabitation

Most, but not all, of the states that allow for the creation of common law marriages require that you and your partner "cohabit" (live with each other) to establish the relationship. But none of these states (except NH) require that you live together for any specific period of time. The states listed below do not require cohabitation in order for a common law marriage to be established:

  • Kansas
  • Alabama (mutual assumption of marital duties and obligations or cohabitation required), and
  • Oklahoma (but it is a very important indicator when establishing the marriage).

What Evidence Does Social Security Need to Accept My Common Law Marriage?

To prove a common law marriage to Social Security so that you'll be eligible for dependents or survivors benefits, one of the following must be provided.

  • If you are both alive, then you must both provide statements that affirm your marriage and you must provide a statement from a blood relative of each of you.
  • If your spouse has died, then you must provide a statement that affirms your marriage and two statements from blood relatives of your deceased spouse.
  • If both husband and wife have died, then a statement affirming the marriage from a blood relative of the wife and a blood relative of the husband affirming the marriage.

Again, the SSA will only acknowledge common law marriages that were established in states that permit them.

What if the State I Live in Doesn’t Allow for Common Law Marriages?

If you live in a state that doesn’t permit common law marriages, a common law marriage cannot be established, no matter how long you live with your partner.

However, if you established a common law marriage in a state that allows them, and move later, any state you move to must acknowledge that marriage. This means that you can get Social Security survivors or spouse’s benefits in any state as long as your common law marriage was created in a state that permitted it.

Can I Get Benefits if My Former Common Law Spouse and I Divorce?

You can be eligible for dependents or survivors benefits as a divorced common law spouse. Your common law marriage, and divorce, must have been valid under your state’s law, and you must otherwise qualify for the benefits.

Keep in mind that there is no such thing as a “common law divorce," meaning you and your spouse can't just announce that you are divorced and stay apart for a while. Even for a common law marriage, you must go to court for a court-ordered divorce decree.

If you are not sure whether you have a valid common law marriage, or if you want a divorce, you might want to arrange a consultation with a family law attorney.

Can I Form a Common Law Marriage With My Same-Sex Partner?

Only in a few jurisdictions can common law marriages be formed between members of the same sex. See Nolo's article on same-sex common law marriage for more information.

by: , Contributing Author

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