Kara Sears
Common-law marriage is a legal marriage for all state and federal purposes. Common-law spouses can receive Social Security benefits, including spousal, survivor, and death benefits, based on their spouse's or former spouse's earnings record. However, the requirements to establish a common-law marriage vary by state, and not all states recognize common-law marriage. For example, in some states, common-law spouses are entitled to spousal protections under retirement plans, while in others, they are not. Additionally, there are specific procedures to verify a common-law marriage, which may include providing statements from both spouses and their blood relatives.
| Characteristics | Values |
|---|---|
| Social Security Benefits | Common-law spouses can get Social Security benefits based on their spouse's earnings record. |
| Individuals who are or were in valid common-law marriages may be eligible for Social Security benefits (spousal, survivor, and death benefits) based on their spouses' or former spouses' earnings record, as long as they met the requirements to establish a common-law marriage in their state. | |
| The children of common-law spouses who are both deceased may qualify for survivor benefits. | |
| The question of Social Security benefits for common-law marriages between same-sex partners is legally unsettled. | |
| The Social Security Administration (SSA) follows state law when determining whether people have a valid marriage. | |
| The Social Security Administration mandates that you must provide evidence of your marriage. | |
| The Family and Medical Leave Act (FMLA) requires employers of a certain size to provide up to 12 weeks of unpaid leave for qualifying reasons. These reasons can include the need to care for the employee's spouse who has a serious health condition or handle a qualifying exigency arising out of a spouse's covered active military duty. | |
| FMLA also provides up to 26 workweeks of military caregiver leave during a single 12-month period to care for a spouse with a serious injury or illness arising from military service. | |
| Retirement plans | Money purchase plan sponsors should be aware of common-law marriage rules for plan loans, since a spouse must give consent for a married participant to receive a loan from a money purchase plan. |
| A retirement plan is excused from ERISA's spousal protections only if the plan verifies that a participant is not married. | |
| Defined benefit and money purchase plans must pay a married participant's benefit as a joint and survivor annuity, unless the spouse consents to a different form of payment. | |
| If a participant in a defined benefit plan waives the joint and survivor annuity without his or her common-law spouse's consent, the plan could be liable to the common-law spouse for the value of that annuity benefit. | |
| State recognition | Common-law marriage is a legal marriage for all state and federal purposes. |
| All states recognize a valid common-law marriage. | |
| The deciding factor in recognizing a common-law marriage for enrollment in health and welfare plans is the state in which the common-law marriage was established. | |
| Social Security regulations list 10 states that currently recognize common-law marriage (some by laws on the books, others by court precedents): Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, and Utah. The District of Columbia does, too. | |
| Sixteen more states formerly recognized such relationships, and if your common-law marriage began when the practice was still legal in your state and it met that state’s criteria, Social Security will recognize it. |
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What You'll Learn
Social Security benefits
If you live in a state that does not recognize common-law marriage, you are not eligible for Social Security benefits as a common-law spouse. However, if you live in a state that does recognize common-law marriage, you may be eligible for the same spousal and survivor benefits as a couple that obtained a marriage license and held a ceremony. These benefits include spousal benefits, survivor benefits, and even benefits from an ex-common-law spouse.
To apply for Social Security benefits as a common-law spouse, you must provide evidence to prove your common-law marriage. This evidence typically includes a statement from each spouse and a statement from a blood relative of each spouse. If either spouse is deceased, you will need a statement from the surviving spouse and statements from two blood relatives of the deceased spouse. In addition, the Social Security Administration may seek corroborating evidence that the couple considered themselves spouses, such as mortgage or rent receipts, insurance policies, or bank records.
It is important to note that the rules and requirements for establishing a common-law marriage vary from state to state, so it is always best to check with the Social Security Administration or a legal professional to understand your specific situation. Additionally, the question of Social Security benefits for common-law marriages between same-sex partners is legally unsettled, so it is important to seek guidance on this specific scenario.
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Employer-sponsored health and welfare plans
In the US, federal rules do not place any requirements on employers when it comes to offering health benefits to spouses. However, some states have rules preventing employment discrimination based on marital status, and some of these rules might prohibit working spouse rules for employers that use fully-insured health insurance.
In the case of common-law marriages, employers sponsoring health and welfare plans should have clear plan terms so participants and eligible employees understand what this means in relation to spousal benefits. While employers that offer insured health and welfare plans generally cannot exclude common-law spouses from those plans, a self-insured plan may choose to do so. Insurers must adhere to the definition of "spouse" established and accepted by the state, and the deciding factor in recognizing a common-law marriage for enrollment in health and welfare plans is the state in which the marriage was established.
Employers that choose to exclude common-law spouses from benefit plans may face the risk of an employee challenging the exclusion as a violation of state law. Employers should request validation or certification of common-law marriage, such as tax filings, social security benefits, and retirement benefits, before adding a common-law spouse to a health and welfare plan. This is particularly important when an employee seeks special enrollment for a new spouse, as an employee may unintentionally trigger the full legal consequences of marriage by enrolling a common-law spouse in the health plan.
In Canada, every province has its own human rights laws prohibiting discrimination on the basis of marital status and sexual orientation. Therefore, the exclusion of common-law or same-sex couples from employee benefit plans would be considered a violation of provincial human rights laws. In the case of government employees, a plan that denies coverage to common-law or same-sex couples may be considered discriminatory on the basis of sexual orientation.
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Retirement plans
In the context of common-law marriage, retirement plans can be more complex. The need to verify a common-law marriage typically arises when a participant retires or passes away and a common-law spouse claims benefits. Plan administrators may face challenges in determining whether a common-law marriage exists and, in some cases, when it was established.
ERISA (the Employee Retirement Income Security Act) provides significant rights to a plan participant's spouse related to retirement benefits. However, ERISA does not define "spouse," which has led to uncertainty in the past. Now, following the US Supreme Court's decision in US v. Windsor in 2013, which federally recognised same-sex marriage, couples legally wed under state law are recognised as spouses under ERISA.
Additionally, the Family and Medical Leave Act (FMLA) defines "spouse" to include common-law marriage, providing up to 12 weeks of unpaid leave for a qualifying spouse's serious health condition or covered active military duty.
It's important to note that rules and benefits can vary based on state law and the specifics of the retirement plan. It's recommended to consult a financial advisor or expert to navigate the complexities of retirement plans and spousal benefits.
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Divorce and common-law marriage
In the United States, common-law marriage is a legal marriage for all state and federal purposes. Common-law spouses can receive Social Security benefits, including spousal, survivor, and death benefits, based on their spouse's or former spouse's earnings record. However, the requirements to establish a common-law marriage vary from state to state. Currently, only 10 states and the District of Columbia recognize common-law marriage. These states are Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, and Utah.
To receive Social Security benefits as a common-law spouse, individuals must prove that they meet the requirements for a common-law marriage in their state. This may include providing evidence such as a Statement of Marital Relationship (form SSA-754) and a statement from a blood relative (form SSA-753). Additionally, Social Security may request corroborating evidence, such as mortgage or rent receipts, insurance policies, or bank records.
It is important to note that there is no such thing as a "common-law divorce." To legally end a common-law marriage, individuals must go through the same divorce process as any other married couple in their state's courts. Once the divorce is finalized, individuals are free to remarry.
Common-law marriage can also impact employer-sponsored benefits, such as health and welfare plans, retirement plans, and leave policies. Employers should have clear plan terms to ensure that participants and eligible employees understand their rights and benefits as common-law spouses.
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Common-law marriage recognition by state
In the United States, common-law marriage is recognized in Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Utah and New Hampshire have limited recognition of common-law marriage. Additionally, Alabama, Florida, Georgia, Indiana, Ohio, and Pennsylvania recognize common-law marriage if it was created before a specified date. For instance, Alabama recognizes common-law marriage if it was created before January 1, 2017, while Florida recognizes it if it was before January 1, 1968.
The requirements for a common-law marriage vary by state. However, some general criteria include being old enough to get married (usually 18 years old), having the mental capacity to marry, and both partners intending to establish a common-law marriage. To prove a common-law marriage, evidence such as statements from each spouse and blood relatives, mortgage/rent receipts, bank records, and insurance policies may be required.
Regarding social security benefits, common-law spouses can receive benefits based on their spouse's or former spouse's earnings record. The Social Security Administration (SSA) follows state law to determine whether a couple has a valid marriage. Individuals in a valid common-law marriage may be eligible for spousal, survivor, and death benefits, but they must meet the requirements established by their state.
It is important to note that the laws and requirements regarding common-law marriage can change over time, and seeking legal advice from an attorney is recommended to understand the specific requirements and benefits in each state.
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Frequently asked questions
Common-law marriage is a legal marriage for all state and federal purposes. It is recognized by all states and is valid for state and federal purposes. However, the rules for what constitutes a common-law marriage vary from state to state.
Yes, common-law spouses can receive benefits such as Social Security benefits (spousal, survivor, and death benefits) based on their spouse's or former spouse's earnings record. They are entitled to the same benefits as a couple that obtained a marriage license and held a ceremony. Common-law spouses can also receive employer-sponsored health and welfare plan benefits.
To prove a common-law marriage, couples must provide evidence of their marriage, such as a statement from each spouse and a statement from a blood relative of each. Other forms of evidence include mortgage/rent receipts, bank records, and insurance policies.
