Keith Mack
The laws surrounding common-law marriage and Social Security spousal and survivor benefits are complicated and vary by state. Generally, unmarried partners do not qualify for spousal and survivor benefits. However, you may be able to secure them if you meet the requirements set by the Social Security Administration (SSA). These requirements include living in a state that recognizes common-law marriage and providing evidence such as statements from both spouses and blood relatives. While some states do not recognize common-law marriage, if you move to another state after establishing a common-law marriage in a state that allows it, your new state of residence must recognize your marriage. This means that you may be eligible for Social Security benefits in any state, as long as your common-law marriage was created in a state that permitted it.
| Characteristics | Values |
|---|---|
| Social Security Benefits | Spousal benefits, survivor benefits, and benefits from an ex-common law spouse |
| Recognition of Common-Law Marriage | Depends on the state; some states recognize it as equal to traditional, ceremonial marriages |
| Requirements for Recognition | Statements from both spouses, and statements from blood relatives of each spouse |
| Evidence for Social Security Benefits | Statements from both spouses, and if either spouse is deceased, a statement from the surviving spouse and statements from two blood relatives of the deceased spouse |
| Employer Benefits | Common-law spouses have equal rights to health coverage and other benefits as married spouses |
| Divorce | Common-law marriages must go through a normal divorce in state courts; there is no such thing as a "common-law divorce" |
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What You'll Learn
Common-law marriage and social security benefits
The laws surrounding common-law marriage and social security spousal and survivor benefits are complicated and vary depending on the state in which you live. Generally, unmarried partners do not qualify for spousal and survivor benefits. However, you may be able to secure them if you meet all the requirements set by the Social Security Administration (SSA).
The SSA defines a common-law marriage as "a non-ceremonial marriage". It further states that for common-law married partners to qualify for certain benefits, they must meet all the required criteria in the state where both partners live. The following states recognize common-law marriage as equal to traditional, ceremonial marriages: Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia. While not expressly allowing for common-law marriage, Rhode Island and Oklahoma have case laws that recognize common-law marriages.
To be eligible for benefits based on your common-law spouse's earnings, you need to provide evidence to prove that you were in a valid common-law marriage. If both spouses are alive, you will need statements from each spouse affirming the marriage, as well as statements regarding the marriage from a blood relative of each spouse. If your spouse has died, you will need your own statement affirming the marriage, along with statements from two blood relatives of your deceased spouse. In some circumstances, you might be able to substitute other evidence for some of these statements, such as a determination by a court or another agency that you had a valid common-law marriage.
It is important to note that you may not establish a common-law marriage when you live in a state that doesn't recognize these marriages. However, if you move to another state after establishing a common-law marriage in a state that allows them, the new state must recognize 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.
Given the complexities of the law, it is recommended to consult a local Social Security attorney to review your claim for free. Attorneys make you three times more likely to win benefits compared to those who file without legal assistance.
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Common-law marriage and employer benefits
Common-law marriage and the benefits that come with it can be a tricky subject, and the laws surrounding spousal and survivor benefits are complicated. Generally, unmarried partners do not qualify for spousal and survivor benefits. However, common-law marriage is a legal marriage for all state and federal purposes. This means that common-law spouses can be eligible for Social Security benefits, including spousal, survivor, and death benefits, based on their spouse's earnings.
The Social Security Administration (SSA) defines a common-law marriage as "a non-ceremonial marriage." The SSA will recognize a common-law marriage as valid if certain requirements are met. These requirements vary from state to state, and it is important to understand the differences. For example, in Kansas, there is no requirement for evidence of cohabitation, whereas in Montana, cohabitation and public repute are required. Other requirements might include a statement from each spouse and a statement from a blood relative of each.
If a couple moves to another state after establishing a common-law marriage in a state that allows them, the new state must recognize the marriage. This means that Social Security benefits can be claimed in any state, as long as the common-law marriage was created in a state that permitted it. However, if a couple establishes a common-law marriage in a state that does not recognize them, the marriage will not be valid in a different state.
The varying laws and requirements for common-law marriage can cause confusion for employers regarding employee benefits for common-law spouses. Employers that sponsor insured health and welfare plans generally cannot exclude common-law spouses from those plans. Insurers must adhere to the definition of "spouse" as accepted by the state, and the deciding factor in recognizing a common-law marriage for enrollment in these plans is the state in which the marriage was established. Self-insured plans may choose to exclude common-law spouses only if the participant cannot substantiate the common-law marriage consistent with applicable state law.
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Common-law marriage requirements
Common-law marriage, also known as non-ceremonial marriage, is a legally binding marriage without a ceremony or other formalities. It is created only if certain specific legal requirements are met. Common-law marriage is currently recognized in seven US states and the District of Columbia. While the specific requirements may vary by state, here are some general requirements for a common-law marriage:
- Legal right or "capacity" to marry: Both partners must have the legal capacity to marry. This typically means they must be of marriageable age, usually 18 years or older, and of sound mind. Additionally, they should not already be married to other people.
- Living together: Cohabitation is a critical aspect of common-law marriage. Couples must live together for a significant period, and the length of time is considered on a case-by-case basis by the court. There is no statutory requirement for the duration, but generally, the longer the better.
- Intent: Both partners must intend to be married and hold themselves out as a married couple to friends, family, and the public. They must behave as a married couple and present themselves as such.
- Agreement: Both parties must agree that they consider themselves married. This agreement is essential, and it forms the basis of a common-law marriage.
- Declaration: In some states, like Texas, couples can sign a Declaration of Informal Marriage with the county clerk. This declaration serves as valid proof of marriage and is considered when determining inheritance rights or divorce proceedings.
It is important to note that not all jurisdictions permit common-law marriage, but they may respect the validity of such marriages lawfully entered in other states or countries. Additionally, same-sex couples can also enter into common-law marriages, as states cannot ban same-sex marriages due to case law and federal statutes.
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Common-law marriage and divorce
In the United States, a common-law marriage is a legal marriage for all state and federal purposes. Common-law marriages are currently recognized in eight states and the District of Columbia. These include Colorado, Iowa, Kansas, Oklahoma, Rhode Island, Texas, Utah, Montana, and New Hampshire.
To establish a common-law marriage, couples must meet certain requirements, which vary by state. Generally, the Social Security Administration will recognize a common-law marriage as valid if the following requirements are met: the couple must live together for a certain period, act as spouses would, and intend to be married. Examples of acting as spouses include filing joint tax returns, assuming the other’s last name, or having a child together.
If a couple establishes a valid common-law marriage in a state that recognizes such marriages, they will be eligible for Social Security benefits, including spousal, survivor, and death benefits. The Social Security Administration takes its lead from individual state law when determining benefits eligibility. This means that even if a couple moves to a state that does not recognize common-law marriages, they will still be eligible for benefits as long as their marriage was created in a state that permitted it.
To apply for Social Security benefits, couples must provide evidence of their common-law marriage. This includes statements from each spouse affirming the marriage, as well as statements from a blood relative of each spouse. If a spouse has died, a statement from the surviving widow or widower and statements from two blood relatives of the decedent are required.
To end a common-law marriage, couples must go through a normal divorce in their state's courts, even if they move to a state that does not recognize common-law marriages. This is because there is no such thing as a "common-law divorce." Once the divorce is final, the former common-law spouse may have certain COBRA rights to continue health coverage under ERISA plans and non-federal government health plans.
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Common-law marriage recognition across states
The recognition of common-law marriages varies across different states in the US. While some states continue to allow and recognize common-law marriages, others have chosen to abolish the practice. As of 2022, common-law marriages are 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 marriages, while Alabama abolished the practice in 2017. South Carolina is also among the states that do not recognize common-law marriages.
The recognition of common-law marriages can have implications for various benefits, including Social Security benefits. The Social Security Administration (SSA) takes its lead from individual state laws when determining benefits eligibility. Therefore, it is crucial to understand the differences between states. If a couple establishes a valid common-law marriage in a state that recognizes it, the SSA will acknowledge the marriage for benefits purposes, even if they later move to a state that does not recognize such marriages. However, it is important to provide evidence to prove the existence of a common-law marriage, which can include statements from both spouses and, in some cases, statements from blood relatives.
The requirements for a common-law marriage can vary across states. Generally, it refers to a couple living together and presenting themselves as spouses without a formal marriage ceremony or license. Mutual consent or agreement to enter into a marital relationship is often a key factor, along with conduct that demonstrates this intention. This may include referring to each other as "husband," "wife," or "spouse" and presenting themselves as a married couple to family, friends, and the community. However, it is worth noting that simply living together does not automatically establish a common-law marriage, and each state may have specific criteria and requirements that must be met.
The recognition of common-law marriages can also impact employer-sponsored health and welfare plans. Insurers and employers are subject to state regulations and must adhere to the definition of "spouse" as established by the state. Properly established common-law marriages are considered lawful marriages under state and federal law, and common-law spouses have the same rights as traditional spouses in terms of enrollment in health and welfare plans. However, the varying recognition of common-law marriages across states can create complexities, especially when couples relocate to a state with different laws.
To summarize, the recognition of common-law marriages differs across US states, with some states recognizing it, while others have abolished or limited it. This recognition impacts various benefits, including Social Security and employer-sponsored plans. Couples in common-law marriages or those considering establishing one should be aware of the specific requirements and implications in their state and seek legal advice to understand their rights and obligations fully.
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Frequently asked questions
A common-law marriage is a non-ceremonial marriage that is considered legal in some states. Common-law marriages are created by the couple's mutual agreement and public behaviour, without an official license and solemnization.
As a result of a common-law marriage, you may be eligible for Social Security benefits, including spousal, survivor, and death benefits. You may also be eligible for health insurance coverage under your spouse's plan, as well as certain COBRA rights in the event of a divorce.
To prove a common-law marriage, you must provide evidence that meets the requirements of a common-law marriage in your state. This may include statements from both spouses, as well as statements from blood relatives of each spouse.
Yes, if your common-law marriage ends, you may lose your benefits. To regain your benefits, you would need to re-establish your marital status, either through a new marriage or by meeting the requirements for common-law marriage in your state.
