Common-Law Spouses: Entitled To Survivor Benefits?

A common-law spouse may be eligible for survivor benefits, but this depends on the state in which they reside. If a common-law marriage is established in a state that permits it, the surviving spouse may receive Social Security survivors or spouses' benefits in any state. Survivor benefits provide monthly payments to eligible family members of deceased individuals who paid Social Security taxes. These benefits are typically calculated based on the late spouse's Social Security benefit at the time of death. The percentage of the deceased spouse's benefit that the survivor receives depends on their age and family circumstances.

Common-law marriage recognition

A common-law marriage, also known as a non-ceremonial marriage, is a legally recognised marriage between two people who have not purchased a marriage license or engaged in a ceremony. Common-law marriages are permitted in several US states, as well as in some other countries, including Kuwait and Australia.

In the US, all jurisdictions recognise common-law marriages that were validly contracted in the originating jurisdiction. However, the extent to which the US Constitution requires interstate marriage recognition has not been fully articulated by the Supreme Court. This means that if you move to another state after establishing a common-law marriage in a state that allows them, your new state must recognise your marriage. As such, 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.

In the US, common-law marriages are recognised in nine states and the District of Columbia. These include Texas, Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, and Utah. To be recognised as a common-law marriage, couples must meet certain requirements, which vary by state. In some states, couples must live together for a consistent period, such as seven or 10 years, and introduce themselves as a married couple to friends, neighbours, and coworkers. They may also need to maintain joint finances and not be married to anyone else. Some states provide for the registration of an informal or common-law marriage based on the declaration of each of the spouses on a state-issued form.

In Texas, for example, there is no requirement for couples to be together for a specific period before they can declare themselves to be in a common-law marriage. However, couples who choose not to declare their common-law marriage may need to provide documents such as lease agreements, tax returns, and insurance policies to prove the marriage if a dispute arises.

In addition to the US, common-law marriages have some limited recognition in Kuwait in the cases of expatriate familial disputes, such as maintenance payments and child support dues. The term ""common-law marriage" has also been used in England and Wales to refer to unmarried, cohabiting heterosexual couples. While Australia does not have common-law marriage as it is understood under common law, de facto relationships have been recognised in the Family Law Act since 2009.

Eligibility requirements

To be eligible for survivor benefits, you must be a family member of the deceased and the deceased must have worked and paid Social Security taxes before they died. This includes spouses, divorced spouses, children, and dependent parents.

In the case of common-law marriages, eligibility for survivor benefits depends on the laws of the state in which the marriage was established. If you are in a common-law marriage that is recognized by your state, you may be eligible for survivor benefits based on your spouse's or former spouse's earnings record. However, if you live in a state that does not recognize common-law marriages, you cannot establish a common-law marriage for the purposes of survivor benefits. It is important to note that if you establish a valid common-law marriage in a state that recognizes it, you will still be eligible for benefits even if you later move to a state that does not recognize common-law marriages, as long as you can provide evidence to prove the validity of your marriage.

Additionally, there are specific requirements and conditions that may impact your eligibility for survivor benefits. For example, if you are an ex-spouse, you must have been married to the deceased for at least 10 years to be eligible. If you are a current spouse, you must have been married for at least 9 months before becoming eligible for survivor benefits (unless you have children born of the marriage). Your income from employment will not affect your survivor benefits, but the income of a child may impact their eligibility for certain benefits.

It is important to note that you can decide when and if you want to claim survivor benefits based on your financial situation. However, there is a time limit on the eligibility of children; they can usually only collect survivor benefits until they turn 18.

Benefit amounts

The benefit amount for a surviving common-law spouse will depend on the type of benefit and the jurisdiction. In the United States, Social Security survivor benefits are available to common-law spouses, provided their marriage is recognised in their state. Monthly payments are provided to eligible surviving spouses, with the amount depending on the age of the survivor and whether they have children.

Under the Social Security Survivor Benefits program, a surviving spouse can collect 100% of their late spouse's benefit if they have reached full retirement age. The full retirement age for survivor benefits is currently 66 and 4 months, gradually increasing to 67 over the next several years. If the surviving spouse has not reached full retirement age, the benefit amount will be lower. For example, if a surviving spouse claims benefits between the age of 60 and their full retirement age, they will receive between 71.5% and 99% of the deceased's benefit. The percentage increases the older the claimant is. If the surviving spouse is disabled and the disability occurred within seven years of their spouse's death, they can apply for benefits as early as age 50 and will receive 71.5% of their late spouse's benefit. If the surviving spouse is caring for children from the marriage who are under 16 or disabled, they can apply at any age and will receive 75% of the late spouse's benefit.

In addition to monthly payments, surviving spouses may also be eligible for Medicare based on the work history of the deceased spouse. It is important to note that remarriage can affect eligibility for survivor benefits. If a surviving spouse remarries before the age of 55, they may no longer be eligible for benefits. However, if they remarry at or after the age of 60 (or 50 if disabled), their eligibility for survivor benefits is not affected.

Under the Federal Employees Retirement System (FERS), survivor benefits are also available to common-law spouses. The maximum survivor benefit payable under FERS is 50% of the deceased spouse's unreduced annual benefit. This means that the surviving spouse will receive half of the benefit that the deceased spouse would have received if they were still alive. Similar to Social Security survivor benefits, FERS survivor benefits can also be affected by remarriage. If a surviving spouse remarries before the age of 55, they may lose their benefits. However, if they remarry after the age of 55, they can continue to receive benefits.

Annuity reductions

• If an individual gets married after retirement, they can choose to reduce their annuity to provide a survivor annuity for their spouse. This election must be made within two years of the marriage date.
• Under the Civil Service Retirement System (CSRS), individuals can choose any portion of their annuity as the basis for the survivor benefit. The survivor benefit can range from 55% of $22.00 (resulting in a $1.00 monthly survivor annuity) to 55% of their unreduced annuity.
• Under the Federal Employees Retirement System (FERS), the full survivor benefit is 50% of the individual's unreduced annual basic annuity, while the partial benefit is 25%.
• If an individual remarries the same person they were married to at retirement, they cannot elect a higher survivor annuity than what they initially elected.
• Electing a survivor annuity for a post-retirement spouse results in two annuity reductions. The first reduction covers the cost of the survivor benefit, while the second reduction is a deposit representing the amount the annuity would have been reduced if the survivor election had been in place from the annuity's starting date.
• The annuity reduction is calculated based on the new annuity rate with the survivor benefit and the old rate without it, plus 6% interest. This actuarial reduction typically remains in place even if the marriage ends.
• In some cases, individuals may elect to provide an insurable interest annuity to someone with a financial interest in their continued life. This option requires the individual to be in good health and provide medical evidence. The annuity will be reduced based on the age difference between the retiree and the beneficiary, ranging from 10% to 40%.
• If an individual was married at retirement and elected less than the maximum survivor annuity with spousal consent, they cannot provide a larger benefit to their former spouse after divorce.
• Monthly survivor annuity payments may also be made to the former spouse of a deceased employee under a court order, provided the marriage lasted at least nine months.
• Unmarried dependent children of the deceased employee may also receive monthly benefits until they reach a certain age or until age 22 if they are full-time students.

Applying for benefits

To apply for survivor benefits, you must be the spouse, divorced spouse, child, or dependent parent of the deceased, and they must have worked and paid Social Security taxes. If you were already receiving spousal benefits on your spouse's work record, you will likely be switched automatically to survivor benefits. Otherwise, you will need to apply by calling the Social Security Administration (SSA) at 800-772-1213 to schedule an appointment to file your claim.

If you are the surviving spouse, you can collect 100% of the late spouse's benefit if you have reached full retirement age. The amount will be lower if your spouse claimed benefits before reaching full retirement age. If you remarry before age 55, you generally cannot continue receiving benefits, but there is no effect on eligibility if you remarry at or past this age. If your spouse was married to you for at least 30 years, you can continue receiving benefits if you remarry before January 1, 1995.

If you are applying as a divorced spouse, your common-law marriage and divorce must have been valid under your state's law, and you must otherwise qualify for the benefits. You can still collect benefits on your late spouse's work record, but if you are eligible for a retirement benefit, you will not receive both. Social Security will pay the higher of the two benefit amounts.

If you are applying as a child of the deceased, you may be eligible if you are unmarried and are:

• Any age if you developed a disability before 21.
• Under 16 or have a disability, in which case your parent can apply on your behalf at any age.

If you are applying as a dependent parent of the deceased, you may be eligible regardless of age and how long your child was married.

Frequently asked questions