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.
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.
States that allow common law marriage. The following states still allow for the formation of common law marriages:
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:
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:
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.
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.
Here are the basic requirements for the creation of a common law marriage; however, your specific state may have additional requirements.
Be sure to check with your state's law to make sure you have met any additional requirements for your common law 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.
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:
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.
Again, the SSA will only acknowledge common law marriages that were established in states that permit them.
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.
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.
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.