Anaya Nolan
If you are in a common-law marriage, you may be eligible for Social Security survivor benefits following your spouse's death. However, this depends on several factors, including the laws of the state in which you established your common-law marriage. In most cases, a widow or widower qualifies for survivor benefits if they were at least 60 years old and had been married to the deceased for at least nine months. There are exceptions to these requirements, and other factors, such as disability, can also affect eligibility.
| Characteristics | Values |
|---|---|
| Common-law marriage | Considered a legal common-law marriage if couples meet certain criteria, such as living in a state that recognizes common-law marriage, having the legal capacity to marry, and intending to be married |
| Social Security benefits | Individuals in valid common-law marriages may be eligible for Social Security benefits, including survivor benefits |
| Survivor benefits eligibility | Surviving spouse, ex-spouse, or child of the deceased may be eligible for survivor benefits; eligibility depends on age, duration of marriage, and remarriage status |
| Remarriage | Remarrying before the age of 60 (50 if disabled) may affect eligibility for survivor benefits |
| Benefit amount | Depends on the age and work history of the surviving spouse; can range from 71.5% to 100% of the late spouse's benefit |
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What You'll Learn
Common-law marriage recognition
Common-law marriage, also known as non-ceremonial marriage, informal marriage, or marriage by habit and repute, is a marriage that is considered valid by both partners, but is not formally recorded with a state or religious registry, nor celebrated in a formal civil or religious service. Common-law marriages are permitted in several U.S. states, and all U.S. jurisdictions recognize common-law marriages that were validly contracted in the originating jurisdiction.
In the U.S., common-law spouses who meet their state's requirements are eligible for most of the financial benefits of a married couple, including Social Security benefits. This includes survivor benefits, which may be claimed by a common-law spouse if they can prove the number of years they lived together in a common-law state. However, it is important to note that the Social Security Administration (SSA) follows state law when determining whether a couple has a valid marriage. Therefore, it is essential to establish a common-law marriage in a state that permits and recognizes such marriages.
Outside of the U.S., common-law marriage has limited recognition in Kuwait in the context of expatriate familial disputes, such as maintenance payments and child support dues. In Australia, the term "de facto relationship" is often used to refer to relationships between any two persons who are not married but are living in certain domestic circumstances. De facto relationships have been recognized in the Family Law Act since 2009, although this recognition only applies within certain states and territories.
In summary, the recognition of common-law marriage varies across different jurisdictions. While some U.S. states and other countries may recognize common-law marriages and offer certain benefits, it is important to understand the specific requirements and eligibility criteria within each jurisdiction.
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Remarriage and eligibility
If you are a surviving spouse receiving Social Security benefits based on your deceased spouse's record, your benefits may be affected by remarriage. The Social Security Administration (SSA) considers remarriage when determining survivor benefits. Here are the key points to understand:
Remarriage before age 50:
If you remarry before turning 50, you generally become ineligible for survivor benefits based on your previous spouse's record. This applies regardless of your new marital status later on. However, if your subsequent marriage ends due to divorce or annulment, you may regain eligibility for survivor benefits.
Remarriage between ages 50 and 59:
If you remarry between the ages of 50 and 59, and you are disabled and unable to work, you may still be eligible for survivor benefits as a disabled surviving spouse or disabled surviving divorced spouse. This eligibility is contingent on your remarriage occurring after turning 50.
Remarriage before age 60:
If you remarry before reaching age 60, you typically forfeit your eligibility for survivor benefits based on your previous spouse's record. This is often referred to as the "'marriage penalty.'"
Remarriage after age 60 (or age 50 with a disability):
Surviving spouses who remarry after age 60 (or age 50 if they have a disability) may continue to be eligible for benefits on their deceased spouse's Social Security record. This rule applies to both widows and widowers.
It is important to note that these rules specifically pertain to remarriage and eligibility for survivor benefits. The SSA also considers other factors, such as the length of marriage and the presence of dependent children, when determining eligibility for survivor benefits. Additionally, the SSA only recognizes common law marriages that were established in states that permit them.
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Valid non-marital relationships
The Social Security Administration (SSA) provides survivor benefits to eligible family members of individuals who worked and paid Social Security taxes before their death. This includes spouses, ex-spouses, children, and dependent parents.
In the case of non-marital relationships, the SSA considers some valid non-marital legal relationships for survivor benefits. Here are the key points to note about such arrangements:
- Common-Law Marriage Recognition: The SSA acknowledges common-law marriages that were established in states that permit them. This means that if you were in a common-law marriage in a state that recognizes such unions, you may be eligible for survivor benefits based on your spouse's work history. However, you cannot establish a common-law marriage in a state that does not recognize them.
- Requirements for Common-Law Marriage: To have a valid common-law marriage, you must meet certain requirements. These typically include living in a state that recognizes common-law marriage, having the legal capacity to marry (such as being of legal age and not already married), intending to be married without a formal ceremony or license, and acting consistently with that intention. This may include living together, sharing finances, and presenting yourselves as a married couple to your community.
- Evidence of Common-Law Marriage: To support a claim for survivor benefits based on a common-law marriage, you may need to provide evidence. This could include your own statement affirming the marriage, statements from blood relatives of your deceased spouse, or other evidence, such as court determinations.
- Same-Sex Common-Law Marriages: Same-sex couples who established valid common-law marriages under state law before the U.S. Supreme Court's decision in Obergefell v. Hodges (2015) may also be eligible for survivor benefits. This decision legalized same-sex marriage and has been held to apply retroactively to common-law marriages as well.
- Other Non-Marital Relationships: Beyond common-law marriages, the SSA considers other non-marital relationships for survivor benefits. One common example is if you are caring for a child of the deceased person. In such cases, you may be eligible for survivor benefits regardless of your marital status or the length of your relationship.
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Eligibility for ex-spouses
An ex-spouse may be eligible for survivor benefits if they meet certain criteria. Firstly, they must have been married to the deceased for at least 9 months to a year before their spouse's death. Secondly, they must not have remarried before the age of 60 (or 50 if they have a disability).
Ex-spouses who were married to the deceased for at least 10 years may be eligible for benefits regardless of their age or how long they were married. They may also be eligible if they are caring for a child of the deceased.
In some states, individuals in valid common law marriages may be eligible for survivor benefits. A common law marriage is recognized by the Social Security Administration (SSA) if it was established in a state that permits such marriages. To have a valid common law marriage, a couple must have established their life together as a married couple while living in a state that recognizes common law marriage, had the legal capacity to marry, and demonstrated the intention to be married through their actions, such as living together, sharing finances, and presenting themselves as a married couple to the community.
It is important to note that there is no such thing as a "common law divorce." To legally end a common law marriage, a normal divorce process must be followed in the state's courts.
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Application process
To apply for Social Security survivor benefits, you must first determine your eligibility. Survivor benefits are monthly payments made to eligible family members of individuals who worked and paid Social Security taxes before their death.
If you are the common-law spouse of the deceased, your eligibility depends on whether your common-law marriage was established in a state that permits them. The following states recognize common-law marriages:
- Colorado
- Iowa
- Kansas
- Montana
- New Hampshire
- Oklahoma
- Rhode Island
- South Carolina
- Texas
- Utah
- Washington D.C.
If your common-law marriage was established in one of these states, you may be eligible for survivor benefits. However, you must provide documentation proving your relationship, such as:
- Affidavits from you and your partner stating your intent to be married
- Affidavits from friends or family confirming you presented yourselves as married
- Documents showing joint ownership, such as property or bank account records
- Insurance policies listing each other as spouses
- Any evidence you've represented yourselves as married to the community
Once you have gathered the necessary documentation, you can apply for benefits as a spouse and provide evidence of your common-law marriage. It is recommended that you consult with a lawyer familiar with Social Security issues before applying.
If you were already receiving spousal benefits based on your spouse's work record, the Social Security Administration (SSA) will typically switch you to survivor benefits automatically when their death is reported. If not, you will need to call the SSA at 800-772-1213 to schedule an appointment to file your claim.
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Frequently asked questions
Survivor benefits provide monthly payments to eligible family members of people who worked and paid Social Security taxes before they died.
You may qualify for survivor benefits if you’re the spouse, divorced spouse, child, or dependent parent of someone who worked and paid Social Security taxes before they died.
Individuals who are or were in valid common-law marriages may be eligible for survivor benefits. However, the Social Security Administration (SSA) only acknowledges common-law marriages that were established in states that permit them.
The basic requirements for a valid common-law marriage include living in a state that recognizes common-law marriage, having the legal capacity to get married, intending to be married, and taking actions that demonstrate that intention, such as living together and sharing income and expenses.
You can apply for survivor benefits by calling the Social Security Administration (SSA) or contacting your local Social Security office.
