Keith Mack
The Social Security Administration (SSA) considers common-law marriages valid, entitling couples to the same benefits as traditionally married couples. However, the SSA follows state law in determining the validity of a common-law marriage, and less than half of the states in the U.S. recognize these marriages. To prove a common-law marriage, couples must provide evidence, such as signed statements from both spouses and their blood relatives, demonstrating their agreement to be married and their public recognition as a married couple. Therefore, the SSA can declare a common-law marriage valid if the couple meets the requirements of the state in which the marriage was established.
| Characteristics | Values |
|---|---|
| Recognition of common-law marriage | The Social Security Administration (SSA) follows state law to determine whether a couple has a valid common-law marriage. |
| Common-law marriage recognition by state | Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia. |
| States that no longer recognize common-law marriage | Alabama, Georgia, Idaho, Ohio, and Pennsylvania. |
| Evidence of common-law marriage | Signed statements from both spouses and two blood relatives from each spouse are preferred. Other forms of evidence, such as mortgage or rent receipts, insurance policies, or bank records, may be considered if preferred evidence is unavailable. |
| Benefits for common-law spouses | Common-law spouses are entitled to the same spousal, survivor, and death benefits as traditionally married couples, including benefits from an ex-common law spouse. |
| Benefits for children of common-law spouses | Children of common-law spouses who are both deceased may qualify for survivor benefits by providing an SSA-753 form from a blood relative of each parent. |
| Common-law marriage established abroad | Recognition may vary by country and may require an opinion from the Social Security legal office. |
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What You'll Learn
Social Security Administration's recognition of common-law marriage
The Social Security Administration (SSA) recognises common-law marriages as valid, entitling couples to the same benefits as those who followed the "traditional" marriage route. These benefits include spousal, survivor, and death benefits.
However, the SSA follows state law when determining whether a couple has a valid common-law marriage. As such, the recognition of common-law marriages varies by state, with less than half of the fifty states recognising these relationships as legally binding. Common-law marriages are currently recognised in Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia. The rules on cohabitation and other criteria for establishing a relationship as a common-law marriage also vary widely from state to state.
If you live in a state that does not recognise common-law marriage, you cannot establish one, and you will not be entitled to Social Security benefits. However, if you move to a state that does not recognise common-law marriages after establishing a common-law marriage in a state that does, your marriage must be recognised by the new state.
To prove a common-law marriage, the Social Security Administration requires certain evidence, which may include:
- Statements from both individuals in the marriage
- Statements from blood relatives of each person in the marriage
- Evidence that the couple considered themselves spouses, such as mortgage or rent receipts, insurance policies, or bank records
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Evidence required to prove common-law marriage
In the United States, common-law marriage has existed since colonial times, when America was a colony of England. Common-law marriage is a legal and informal marriage, meaning that the couple never had a formal wedding ceremony and never obtained a marriage license or certificate. It is a marriage between two persons free to marry, who consider themselves married, live together as a married couple, and meet certain requirements in some states.
The Social Security Administration requires certain evidence to prove a common-law marriage to obtain spousal and survivor benefits. The specific evidence needed depends on the state's laws, but some general examples include:
- Signed statements from both the husband and wife and two blood relatives if both are alive, or the signed statements of the living spouse and two blood relatives of the deceased if one spouse has passed away.
- An agreement or other official documents signed by both partners declaring their intention to marry.
- Proof that both spouses are at least 18 years old (or have parental consent if younger) and have the mental capacity to understand the commitment and consequences of marriage.
- Evidence that the couple is not closely related and does not have other spouses (as prohibited by incest and bigamy laws).
Same-sex couples have the same legal rights as opposite-sex couples in establishing a common-law marriage but may face challenges in gathering evidence due to past discrimination and limitations in joint filings and official documents.
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Common-law marriage and Social Security benefits
A common-law marriage is a marriage that is considered valid under state laws, even though there was no formal ceremony. It is a marriage between two persons who are free to marry, who consider themselves married, live together as a married couple, and meet certain other requirements in some states.
The Social Security Administration (SSA) follows state law when determining whether a couple has a valid common-law marriage. To have a valid common-law marriage, you and your partner must have established your life together as a married couple while living in a state that recognizes common-law marriage. You must also have had the legal capacity to get married, such as being old enough and not already being married to someone else. In addition, you must have both intended to be married and taken actions that demonstrated that intention, such as sharing income and expenses and holding yourselves out as a married couple to family, friends, and the community.
To receive Social Security benefits based on a common-law marriage, you must provide evidence to prove your marriage. The preferred evidence of a common-law marriage is signed statements from both spouses and two blood relatives of each spouse, explaining why the signers believe there was a marriage between the two persons. If either spouse is deceased, then signed statements from the living spouse and two blood relatives of the deceased spouse are required. If both spouses are deceased, signed statements from one blood relative of each spouse are needed.
If you cannot obtain the preferred evidence, you may provide other convincing evidence of your common-law marriage and explain why you cannot provide the preferred documentation. It is important to note that you may not establish a common-law marriage in a state that does not recognize such marriages. However, if you move to a state that does not recognize common-law marriages after establishing your common-law marriage in a state that does, your marriage will still be valid in the new state.
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Common-law marriage in states that don't recognize it
A common-law marriage is a legally recognized marriage between two people who have not purchased a marriage license or participated in a ceremony. Common-law marriages are recognized in nine states and Washington, D.C.
However, if you live in a state that does not recognize common-law marriages, it is essential to understand that you cannot be considered legally married, even if you meet the requirements of a common-law marriage. In such cases, you would need to follow the legal marriage procedures in your state to be recognized as married.
That being said, the laws regarding common-law marriages can be complex and vary from state to state. Some states, like Pennsylvania, retroactively recognized common-law marriages for same-sex couples before the state's timeline for legal same-sex marriages. Additionally, some states, like Texas, require legal or administrative proceedings to have a common-law marriage recognized, especially when it comes to divorce or property division.
It is worth noting that, even in states that do not recognize common-law marriage, cohabitation and holding yourself out as a married couple can have legal implications. For example, in New Hampshire, common-law marriages are not recognized, but "cohabitation" can be recognized for inheritance purposes if the couple lived together for three years. Similarly, conduct that demonstrates an intention to be in a common-law marriage, such as presenting yourselves as a married couple to family and friends, can be considered evidence of a common-law marriage in other states. Therefore, if you live in a state that does not recognize common-law marriage but want to ensure your rights are protected, it may be advisable to consult an attorney or legal professional to understand the specific laws and implications in your state.
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Common-law marriage and same-sex couples
The Social Security Administration (SSA) requires certain evidence to prove a common-law marriage under state law to apply for benefits. While the precise requirements to prove a common-law marriage may vary from state to state, generally, evidence and testimony are required regarding the exchange of words in the present tense that the couple wished to establish a marriage with each other and other evidence that the couple acted as a married couple publicly.
A common-law marriage is a marriage between two persons free to marry, who consider themselves married, live together as a married couple, and, in some states, meet certain other requirements. The preferred evidence of a common-law marriage is the signed statements of the couple and those of two blood relatives. If a spouse is deceased, the signed statements of two blood relatives of the deceased are also required. All signed statements should explain why the signer believes there was a marriage between the two persons.
Same-sex couples can enter into a common-law marriage if they meet the requirements. State courts have the power to declare same-sex relationships to be common-law marriages if they would accord the same status to a heterosexual union. For example, in Pennsylvania, a same-sex common-law marriage will be recognized if contracted before January 1, 2005, even though Pennsylvania did not recognize same-sex marriages until May 20, 2014. Similarly, in South Carolina, a court declared a same-sex couple married since 1987, despite South Carolina only recognizing same-sex marriage from November 20, 2014.
In the case of a same-sex couple separating, a common-law marriage can be established even if a spouse died before same-sex marriage became legal in their jurisdiction. This is important because some benefits, such as Social Security or alimony benefits, require a certain length of marriage for a spouse to access them.
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Frequently asked questions
The SSA defines a common-law marriage as a marriage between two persons free to marry who consider themselves married, live together as husband and wife, and meet certain state-specific requirements.
The requirements to prove a common-law marriage vary by state. In general, both spouses must complete a "Statement of Marital Relationship" and provide statements from blood relatives affirming the marriage. Other forms of evidence, such as mortgage or rent receipts, insurance policies, or bank records, may also be considered.
Common-law spouses are generally entitled to the same spousal and survivor benefits as couples who obtained a marriage license and held a ceremony, including benefits from an ex-common law spouse. However, it is important to note that the availability of benefits depends on whether the common-law marriage is recognized in the state where it was established.
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