Prior to the Supreme Court decision that overturned the federal Defense of Marriage Act (DOMA), married same-sex couples were not entitled to the same federal benefits as heterosexual married couples. For example, heterosexual spouses (and ex-spouses) could get Social Security disability benefits based on the working spouse's earnings record, but same-sex spouses could not. However, since DOMA was overturned, the federal government is required to recognize all marriages that are valid in the state where the couple lives.
One issue that has developed in light of the DOMA decision is whether states that recognize both common-law marriages and same-sex marriages will allow the formation of same-sex common-law marriages. This is important because eligibility for federal benefits, including Social Security, are extended to common-law spouses as long as the marriage was validly created in a common-law marriage state. Therefore, if a same-sex couple is entitled to common-law marriage, then same-sex common-law spouses are eligible for federal benefits.
Common Law States and Same-Sex Relationships
Currently only Iowa, Rhode Island, and the District of Columbia permit both common-law marriages and same sex marriages. However, this doesn’t mean that the right to establish a common-law marriage has been automatically conferred on same-sex couples in these states, even if all the requirements for a common-law marriage seem to be met. This is because the laws that outline the states’ common-law marriage criteria commonly use gender-specific language that requires, for example, that the parties be “husband and wife.” Fortunately, both D.C. and Rhode Island have made changes to theses law to allow same-sex couples the right to enter into common-law marriages, though Iowa has not.
The District of Columbia
The original court case that created the right for people in D.C. to enter into common-law marriage required that two individuals:
- have an express mutual agreement to be “husband and wife”, and
- live together as “husband and wife.”
However, when D.C. enacted its equal access to marriage laws in 2009, it also added a section that dealt with the use of gender-specific terms like “husband and wife.” The law now states:
Where necessary to implement the rights and responsibilities relating to the marital relationship or familial relationships, gender-specific terms shall be construed to be gender neutral for all purposes throughout the law, whether in the context of statute, administrative or court rule, policy, common law, or any other source of civil law.
The effect of this law was to allow same-sex partners who otherwise meet the criteria to establish a common-law marriage in D.C. (Note there is no required number of years that you must live together or hold yourselves out as married.)
The importance of this is that now that DOMA has been overturned, same-sex common-law spouses in D.C. are eligible for federal benefits, including Social Security benefits.
Here are the original requirements for a common-law marriage in Rhode Island:
- two individuals must seriously intend to enter into the “husband-wife” relationship, and
- the individuals’ conduct must be of such character as to lead to a belief in the community that they are married.
Note there is no required number of years that you must live together or hold yourselves out as married.
On August 1, 2013, same-sex marriages were legalized in Rhode Island. Part of the law that allows for same-sex marriages states:
Marriage is the legally recognized union of two (2) people. Terms relating to the marital relationship or familial relationship shall be construed consistently with this section for all purposes throughout the law, whether in the context of statute, administrative or court rule, policy, common law, or any other source of civil law.
Like the language of the D.C. law, the Rhode Island law means that same-sex couples who satisfy Rhode Island’s common-law marriage requirements will be married under state law. Therefore, same-sex common-law spouses in Rhode Island will be eligible for federal benefits.
Same-sex marriage has been legal in Iowa since 2009, following a decision by the state’s Supreme Court. Common-law marriage is also legal in Iowa. However, unlike D.C. and Rhode Island, Iowa lawmakers have not yet passed a bill that addresses the use of gender-neutral language in its statutes, court or administrative rules, policy, or common law. This means that the current requirements for common-law marriage stand. These are:
- that two individuals have the present intent and agreement to be married
- that the individuals live together continuously, and
- that there is a public declaration or “holding out” to the public that the individuals are husband and wife.
The continued use by Iowa of the gender specific terms “husband and wife” suggests that common-law marriages cannot be established by same-sex couples. This means that for now it is unlikely that the federal government would extend benefits to same-sex couples who would otherwise meet the requirements for a common-law marriage in Iowa.
Rhode Island, D.C., and perhaps Iowa are likely to be the only states that recognize same-sex common law marriage for a long time. It's unlikely that any states that don't already recognize common law marriage will start recognizing it, and of the states that already allow common law marriage, only one, Colorado, appears remotely close to legalizing same-sex marriage.
States that Recognize Common-Law Same-Sex Marriages
If you have entered into a same-sex common-law marriage in either Rhode Island or D.C., your marriage will be valid in any of the other states that recognize gay marriage. No other states, other than those listed below, will recognize a same-sex common law marriage.
Gay marriage is currently legal in:
- New Hampshire
- New York
- Rhode Island
- Vermont, and
New Mexico law is silent on whether or not it accepts same-sex marriages (either common-law, civil, or religious) as valid. However, the state’s Attorney General issued an opinion on January 4, 2011 saying that New Mexico should honor gay marriages that are validly established under another state’s law.
When Same-Sex Common Law Marriages Begin
At this point in time, it is unclear whether Rhode Island or D.C. will recognize the formation of a common-law marriage retroactively. This is an important issue because length of marriage generally determines eligibility for spouse's, or former spouse's, Social Security benefits.
Implications of Retroactivity
If Rhode Island were to permit the formation of common-law marriage retroactively, for instance, then a same-sex couple who had met the state’s requirements for common-law marriage could possibly, as of August 1, 2013, already meet Social Security's duration of marriage requirements. Thus the eligible spouse could be entitled to Social Security benefits immediately. (In Rhode Island, the start date of the marriage for civil unions that are solemnized as marriages will date back to the formation of the civil union.)
For Rhode Island and D.C., however, the safer assumption is that a same-sex common-law marriage will be considered to have begun on the date same-sex marriage became legal in that jurisdiction.
Marriage Length Requirements
To be eligible for Social Security benefits, your marriage must have lasted the following amounts of time.
Dependent spouse’s retirement benefits. The couple must have been married for at least one year before becoming eligible for benefits.
Surviving spouse’s benefits. The couple must have been married for at least nine months before the death of the working spouse.
Divorced spouse’s benefits. The marriage must have lasted at least ten years to be eligible for benefits on the former spouse’s earnings record.
There are exceptions to these duration requirements; for example, where a former spouse cares for the deceased worker’s disabled child. For more information, read our blog about how DOMA affects same-sex marriages and disability benefits.
Changing Same-Sex Marriage Laws
Same-sex marriage laws are constantly being updated and, consequently, the rights of same-sex couples are evolving as well. Always refer to the laws of your state to see how your right to federal benefits may be affected by your same-sex relationship. For more information on developments following the Windsor decision on the Defense of Marriage Act, see Nolo's series of articles under The Supreme Court’s DOMA Decision.