Common Law Marriage and Social Security Dependents and Survivor Benefits

In some states, couples who meet certain criteria are considered to have a legal common law (or "informal") marriage even if they never held a religious or civil marriage ceremony.

Are Federal Benefits Available for Common Law Spouses?

Individuals who are or were in valid common law marriages may be eligible for Social Security benefits (spousal, survivor, and death benefits) based on their spouses' or former spouses' earnings record, as long as they met the requirements to establish a common law marriage in their states. This is because the Social Security Administration (SSA) follows state law when determining whether people have a valid marriage.

What Are the Requirements for a Common Law Marriage?

In general, you must meet the following basic requirements to have a valid common law marriage:

• when you and your partner established your life together as a married couple, you were living in a state that recognizes common law marriage (or did so at the time)
• you had the legal capacity to get married (such as being old enough and not being married to anyone else)
• you both intended to be married, despite not having a ceremony or getting a license, and
• you took actions that demonstration that intention, such as living together, sharing your income and expenses, and holding yourselves out as a married couple to family, friends, and the community.

Some of these requirements are spelled out in state law. Often, however, you can only find descriptions of the requirements in court opinions, especially when it comes to the type of conduct needed to convince a judge that you have a valid common law marriage. You can learn more about which states recognize common law marriages and the other requirements. But if you're in doubt as to whether your relationship qualifies, you should speak to a qualified family law attorney who understands the law in your state.

Note that if you established a valid common law marriage in a state where that marriage was legally recognized, SSA will recognize your marriage for the purpose of benefits even if you later moved to a state that doesn't allow common law marriages.

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

In order to be eligible for benefits based on your common law spouse's earnings, you'll need to provide SSA with evidence to prove that you were in a valid common law marriage.

• If both spouses are alive: Statements from each spouse affirming the marriage, as well as statements regarding the marriage from a blood relative of each spouse. .
• If your spouse has died: Your own statement affirming the marriage, along with statements from two blood relatives of your deceased spouse.

In some circumstances, you might be able to substitute other evidence for some of these statements. Also, you may use other evidence to support your claim, such as a determination by a court or another agency that you had a valid common law marriage .

Again, 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?

You may not establish a common law marriage when you live in a state that doesn't recognize these marriages. However, if you move to another state after you've already established a common law marriage in a state that allows them, the state where you're living now must recognize your marriage. This means that you may get Social Security survivors or spouses' benefits in any state, as long as your common law marriage was created in a state that permitted it.

Can I Get Benefits If I Divorce My Former Common Law Spouse?

You may 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. Once you've established a common law marriage, you must go through a normal divorce in your state's courts to legally end that marriage.

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

Courts have consistently held that the U.S. Supreme Court's decision legalizing same-sex marriage (Obergefell v. Hodges, 576 U.S. 644 (2015)) applies to common law marriages. Several courts have also held that Obergefell applies to same-sex couples who established valid common law marriages under state law before 2015. Learn more about same-sex common law marriage and Social Security benefits.