Common Law Marriage and Social Security Dependents and Survivor Benefits

In a few states, couples who meet certain criteria are considered to have a legal common law marriage even if they never held a religious or civil marriage ceremony. Partners in a common law marriage are often entitled to the same rights and benefits as those in a formal marriage, but establishing that a common law marriage exists can be complicated. You'll need to be familiar with your state laws on common law marriage before you'll know whether your relationship is recognized for the purpose of getting benefits from the federal Social Security Administration (SSA).

Does Social Security Recognize Common Law Marriage?

Yes, in circumstances where the state considers the common law marriage valid. If you are or have been in a valid common law marriage, you may be eligible for Social Security dependent or survivor benefits based on your spouse's (or former spouse's) earnings record, as long as you meet the requirements to establish a common law marriage in your state.

What Are the Requirements for a Common Law Marriage?

The specific criteria you'll need to establish a valid common law marriage—and qualify for Social Security spousal benefits—varies from state to state, but in general, you must meet the following basic requirements to have a valid common law marriage:

• You and your partner both intend for your relationship to be as a married couple.
• You took actions that demonstrate that intention, such as living together, sharing expenses, filing taxes jointly, and holding yourselves out as a married couple to your friends, family, and community.
• You were living in a state that recognizes common law marriage, or did so at the time, when you and your partner established your life together as a married couple.
• You had the legal capacity to get married (such as being old enough to marry and not being already married to somebody else).

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. 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.

It's important to know that if you established a valid common law marriage in a state where that marriage was legally recognized, the SSA will acknowledge the validity of your marriage for the purpose of receiving benefits even if you later moved to a state that doesn't allow common law marriages.

How Can I Show Social Security That I Have a Common Law Marriage?

In order to be eligible for benefits based on your common law spouse's earnings, you'll need to provide the SSA with evidence showing that you are, or were, in a valid common law marriage. (20 C.F.R. § 404.726). If both spouses are alive, that means statements from each spouse affirming the marriage, as well statements regarding the marriage from a blood relative of each spouse. If your spouse has died, that means providing your own statement affirming the marriage, along with statements from two blood relatives of your deceased spouse.

You can complete Form SSA-754-F5, Statement of Marital Relationship, to satisfy your affirmation of the marriage. Relatives can use Form SSA-753, Statement Regarding Marriage, to satisfy the remaining requirements. In some circumstances, you might be able to substitute other evidence for some of these statements. Also, you may support your claim with the following:

• a determination by a court or another government agency that the common law marriage is valid
• shared assets, such as a joint bank account or both names on a mortgage
• insurance policies naming each other as the beneficiary, and
• proof of financial commingling, such as paying utility bills together.

Don't forget that the SSA only acknowledges common law marriages that were established in states that permit them. So even if you and your partner have lived together and shared finances for many years, the SSA won't consider you in a common law marriage if the relationship didn't start in a state that allows for common law marriages.

What If the State I Live in Doesn't Recognize Common Law Marriages?

You can't enter into a common law marriage when you live in a state that doesn't recognize these marriages. But if you move from a state that allows establishment of common law marriages (for example, Texas) into a state that doesn't, the state where you're now living 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 Common Law Spouse?

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 the normal divorce process in your state's courts to legally end that marriage.

That said, you may be able to get dependents' or survivors benefits as a divorced common law spouse. In order to qualify, your common law marriage (and divorce) must have been valid under the laws of your state and you must meet some basic eligibility criteria based mainly on the length of your former relationship and your current marital status.

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. You can learn more in our article about same-sex common law marriage and Social Security benefits.

What Else Should I Know About Collecting Social Security Disability Benefits?

One key bit of information that you should be aware of is that spousal, dependents, and survivors' benefits—sometimes called "auxiliary" benefits—are only available to people who are covered under Social Security Disability Insurance (SSDI). If your spouse doesn't have enough work credits to qualify for SSDI, you won't be able to get auxiliary benefits on their earnings record. (Supplemental Security Income, or SSI, is another type of disability program for people with limited income and assets, but the program doesn't offer auxiliary benefits.)

If you're not sure whether you're in a common law marriage or you think your relationship might not qualify as one, you may want to check out some of our articles on the following related topics:

• Social Security Benefits for Unmarried Couples
• Social Security Benefits for Members of Domestic Partnerships or Civil Unions
• Social Security Benefits for Spouses of Disability Recipients

Lastly, if you live in a state that doesn't allow for common law marriages and you decide to formally get married, you should learn how getting married affects your disability benefits. For more personalized advice (or to get help with filing a Social Security claim), you may want to consider contacting a local disability lawyer.