Common-Law Spouse Benefits: What You Need To Know

Individuals in 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 their common law marriage is recognised by their state. This is because the Social Security Administration (SSA) follows state law when determining whether people have a valid marriage. Common law spouses may also be exempt from the gift tax for gifts to each other, enjoy unlimited marital exemptions for their estate up to the federal estate tax limit, and claim deductions for mortgage interest if they co-own a house or have children.

Social Security benefits

Individuals in 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 meet the requirements to establish a common-law marriage in their state. The Social Security Administration (SSA) follows state law when determining whether people have a valid marriage.

The children of common-law spouses who are both deceased may qualify for survivor benefits. In applying, they must provide an SSA-753 form from a blood relative of each parent. The question of Social Security benefits for common-law marriages between same-sex partners is legally unsettled.

If you live in a state that does not recognise common-law marriage, you cannot receive Social Security benefits. However, if you move to another state after you've already established a common-law marriage in a state that allows them, the state where you're living now must recognise 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.

To receive Social Security benefits, both common-law spouses must complete a "Statement of Marital Relationship" (form SSA-754) and provide an additional statement from a blood relative affirming the marriage (form SSA-753). Social Security may seek corroborating evidence that the couple consider (or considered) themselves spouses, such as mortgage or rent receipts, insurance policies or bank records.

Tax benefits

If your state recognises common-law marriage, you may be eligible to receive tax benefits. Recognised common-law marriage partners are exempt from the gift tax for gifts to each other. They enjoy unlimited marital exemptions for their estate up to the federal estate tax limit and they can claim deductions for mortgage interest if they co-own a house or have children.

To be eligible for benefits based on your common-law spouse's earnings, you'll need to provide the Social Security Administration (SSA) with evidence to prove that you were in a valid common-law marriage. 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 states. This is because the SSA follows state law when determining whether people have a valid marriage.

You may also 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.

Inheritance

Common-law spouses may also be eligible for Social Security benefits (spousal, survivor, and death benefits) based on their spouse's or former spouse's earnings record. However, this is dependent on the couple meeting the requirements to establish a common-law marriage in their state, and providing evidence to prove that they were in a valid common-law marriage.

Medical power of attorney

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. This is because the Social Security Administration (SSA) follows state law when determining whether people have a valid marriage.

A Medical Power of Attorney is a legal instrument that allows you to select the person that you want to make healthcare decisions for you if and when you become unable to make them for yourself. It gives that person (called your agent) instructions about the kinds of medical treatment you want. You have a right to decide what kind of medical treatment you do and do not want. If you have specific wishes about your health care, a Durable Power of Attorney for Health Care will ensure that those wishes are honoured even if you are physically or mentally unable to tell your doctors what you want.

When choosing a medical power of attorney, you should look for someone who is not intimidated by medical professionals and is willing to ask challenging questions. They should be able to put aside their own feelings about a particular procedure or medical option in order to ensure that your wishes are carried out. It is also important that they understand your wishes about medical options and end-of-life care. You might also want to think about an alternate power of attorney if your first choice is unable to carry out the job. Once you choose a medical power of attorney, continue talking with them on an ongoing basis about possible situations that might occur, and how you would want them handled.

Benefits after divorce

If your state recognises common-law marriage, you may be eligible to receive Social Security spousal or survivor benefits. These benefits are based on your spouse's or former spouse's earnings record. To be eligible, you'll need to provide the Social Security Administration (SSA) with evidence to prove that you were in a valid common-law marriage.

Common-law spouses are exempt from the gift tax for gifts to each other. They enjoy unlimited marital exemptions for their estate up to the federal estate tax limit and can claim deductions for mortgage interest if they co-own a house or have children. Inheritance of a common-law spouse's property is allowed with a valid will. Their children and other family members assume the inheritance rights, however, if they die without a will. This leaves the surviving common-law spouse with nothing.

A common-law marriage must be ended through a normal divorce in your state's courts.

Frequently asked questions