Same-Sex Common Law Marriage and Social Security Dependents & Survivor Benefits

Learn how gay couples in valid common law marriages may be eligible for Social Security benefits based on their partners’ earnings.

By , Legal Editor

If you are or were in a common law marriage, you may be eligible for Social Security benefits that are based on your current or former spouse's earnings record—such as survivor benefits, disability benefits, and even retirement benefits. This is true for gay couples as well as heterosexual couples. But, like anyone claiming to be married without a marriage license or ceremony, you'll have to prove that you had a valid, legally recognized common law marriage.

The Constitutional Right to Same-Sex Marriage Applies to Common Law Marriages

In Obergefell v. Hodges, 576 U.S. 644 (2015), the U.S. Supreme Court held that same-sex couples have a constitutional right to "civil marriage on the same terms and conditions as opposite-sex couples." As courts since have consistently held, that means same-sex couples are entitled to have their valid common law marriages recognized.

Gay Common Law Marriages Before Same-Sex Marriage Was Legal

What about same-sex partners who lived their lives as married couples before same-sex marriage was legal—in states that would've recognized their common law marriages if they'd been heterosexual couples? Many courts have held that the Obergefell decision must be applied retroactively to common law marriages that were established before the Supreme Court's 2015 decision. That's because any state laws restricting common law marriage to heterosexual couples were void as a violation of the constitutional rights of same-sex couples.

Whether you are or were in a same-sex or opposite-sex common law marriage, you'll need to provide the same evidence of a common law marriage for purposes of eligibility for Social Security benefits.

How Do Social Security's Marriage-Length Requirements Affect Same-Sex Common Law Marriages?

To be eligible for Social Security benefits based on your spouse's earnings record, your marriage generally must have lasted a certain amount of time (although there are exceptions):

  • Surviving spouse's benefits: You must have been married for at least nine months before your spouse died.
  • Dependent spouse's retirement benefits: You must have been married for at least one year before you may be eligible for benefits.
  • Divorced spouse's benefits: Your former marriage must have lasted at least ten years to be eligible for benefits on your ex's earnings record.

If you've been in a same-sex common law marriage since before 2015, the date your marital relationship started would not be the date of the Supreme Court's Obergefell decision, because that decision should apply retroactively. Instead, you should provide evidence from your own lives together of when your common law marriage began.

Admittedly, some things that courts and agencies traditionally considered as evidence of a common law marriage won't be available for gay couples who entered committed relationships at a time when same-sex marriage was illegal. For instance, as the Colorado Supreme Court explained, it could have been unrealistic or even dangerous for some gay couples to hold themselves out in public as married. They also wouldn't have been able to file joint tax returns or list their partners as their "spouse" on official records. (Hogsett v. Neale, 478 P.3d 713 (Co. Sup. Ct. 2021).)

But that doesn't mean it's impossible to provide other evidence showing when you and your partner first established a marital relationship, such as when the two of you did some combination of the following:

  • exchanged wedding rings
  • had a ceremony or other celebration of your union
  • told at least some family members that you were married
  • signed a lease or bought a home together
  • designated each other as beneficiaries, and
  • opened joint bank accounts.

Does Where You Live Affect Your Right to Collect Social Security Benefits Based on Your Same-Sex Common Law Marriage?

The Social Security Administration will only recognize your same-sex common law marriage if you first established it in a state that recognized common law marriage in general. It doesn't matter if you moved since then, because all states must recognize valid common law marriages that were established in other states where it was legal.

As of 2022, only nine states (plus Washington, D.C.) legally permit couples to establish new common law marriages. But more than a dozen other states will recognize common law marriages if they were established before the practice was abolished in that state—and some states did that as recently as 2019. Learn more about where common law marriage is recognized and state requirements for these marriages.

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