Cameron Miranda
Social Security benefits are a crucial part of retirement income for millions of Americans. In the US, individuals in valid common-law marriages may be eligible for Social Security benefits (spousal, survivor, and death benefits) based on their spouses' earnings. However, the Social Security Administration (SSA) follows state law when determining whether a couple has a valid common-law marriage, and less than half of the fifty states recognize these relationships as legally binding. To be eligible for benefits based on a common-law spouse's earnings, one must provide the SSA with evidence to prove a valid common-law marriage, such as statements from each spouse and statements from blood relatives of each spouse.
| Characteristics | Values |
|---|---|
| Common-law marriage recognition by SSA | Common-law marriage is recognized by the Social Security Administration (SSA) as long as it is recognized in the state where it was contracted. |
| States recognizing common-law marriage | Less than half of the fifty states recognize common-law marriage. |
| Requirements for common-law marriage | The couple must live together and hold themselves out to the public as husband and wife. There must be an agreement to marry, and both individuals must be legally capable of entering into a valid marriage. |
| Evidence for common-law marriage | Statements from each spouse affirming the marriage and statements from a blood relative of each spouse are required. Other evidence, such as mortgage/rent receipts, bank records, and insurance policies, may also be considered. |
| Benefits eligibility | Individuals in a valid common-law marriage may be eligible for Social Security benefits, including spousal, survivor, and death benefits, based on their spouse's earnings. |
| Same-sex common-law marriage | The U.S. Supreme Court's decision legalizing same-sex marriage (Obergefell v. Hodges, 2015) applies to common-law marriages. |
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What You'll Learn
Common-law marriage recognition by the SSA
The Social Security Administration (SSA) will recognize a common-law marriage as valid if certain requirements are met. Firstly, the common-law marriage must have taken place in a state where such marriages are recognized. Less than half of the fifty states recognize these relationships as legally binding. In states that do recognize common-law marriage, the couple must live together and present themselves to the public as a married couple. The cohabitation does not have to be in the same state where the marriage agreement was made.
Secondly, there must be an agreement to marry. This agreement proposes a marital status that cannot be terminated at will but can only be terminated in the same manner as a traditional marriage, i.e., death, divorce, or annulment. Finally, both individuals must be legally capable of entering into a valid marriage, such as having the mental capacity to marry and not being married to someone else.
To apply for Social Security benefits based on a common-law marriage, the SSA requires evidence to prove the marriage. If both spouses are alive, 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 living spouse and statements from two blood relatives of the deceased spouse are required. Other evidence, such as mortgage/rent receipts, bank records, and insurance policies, may also be considered. The SSA will only acknowledge common-law marriages that were established in states that permit them, so it is important to understand the specific requirements of each state.
It is worth noting that the SSA's recognition of common-law marriage also extends to same-sex couples who established valid common-law marriages under state law before 2015, following the U.S. Supreme Court's decision in Obergefell v. Hodges. Additionally, divorced individuals may be able to claim benefits based on their former spouse's record if the marriage lasted at least 10 years.
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Evidence of common-law marriage
The Social Security Administration (SSA) will only acknowledge common-law marriages that were established in states that permit them. The SSA follows state law when determining whether people have a valid marriage. Less than half of the fifty states recognize these relationships as legally binding.
If you want to claim Social Security benefits based on your common-law spouse's earnings, you'll need to provide the SSA with evidence to prove that you were in a valid common-law marriage. The exact evidence you'll need to prove a common-law marriage will depend on your state's laws.
If both spouses are alive, you'll 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'll 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. You may use other evidence to support your claim, such as a determination by a court or another agency that you had a valid common-law marriage.
Other documents that can be used as evidence of a common-law marriage include:
- Deeds showing title to property held jointly by both parties
- Bank statements and checks showing joint ownership of accounts
- Loan documents, leases, mortgages, and promissory notes that show joint financial obligations of the parties
- Credit card accounts in the names of both common-law spouses
- Church records indicating familial status, membership information, baptismal certificates of the spouses' children, Sunday School registration forms, etc.
- Friend and family affidavits: Affidavits from people who know you and your partner (friends, family, etc.), and are familiar with your relationship, will be helpful to prove your common-law marriage. Your friends and family should include the following in their affidavits: How they know you (friend, family, co-worker, etc.), the length of time you and your spouse have lived together, whether there was a public announcement of your marriage (save the date, wedding invitation, social media post, etc.), and whether your friends, neighbors, and family think you are married.
- Driver's license or Social Security number card that shows a name change that matches your spouse's name
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State-specific requirements
The Social Security Administration (SSA) follows state law when determining whether a couple has a valid common-law marriage. The SSA will only acknowledge common-law marriages that were established in states that permit them.
The specific requirements for a common-law marriage vary from state to state. However, some general requirements include:
- The couple must live in a state where common-law marriage is legal.
- Both spouses must be free to marry.
- The couple must live together and hold themselves out to the public as husband and wife.
- There must be an agreement to marry, which proposes a marital status that can only be terminated by death, divorce, or annulment.
In addition, to be eligible for SSA benefits based on a common-law spouse's earnings, the couple must provide evidence to prove their common-law marriage. This evidence typically 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 spouse and statements from two blood relatives of the deceased spouse are required.
- Other evidence, such as mortgage or rent receipts, insurance policies, or bank records, may also be considered.
It is important to note that the recognition of common-law marriages established abroad varies by country and may require an opinion from the SSA's legal office.
As of 2025, the following states recognize common-law marriages: Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, and Utah, as well as the District of Columbia.
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Same-sex common-law marriage
In the United States, the Social Security Administration (SSA) recognises the marriages of same-sex couples in all states, as well as some non-marital legal relationships. This includes common-law marriages, as long as they were established in a state that recognised common-law marriage in general.
The SSA will only acknowledge common-law marriages that were established in states that permit them. As of 2022, only nine states (plus Washington, D.C.) legally permit couples to establish new common-law marriages. These are:
- Colorado
- Iowa
- Kansas
- Montana
- New Hampshire
- Oklahoma
- Rhode Island
- South Carolina
- Texas
- Utah
However, more than a dozen other states will recognise common-law marriages if they were established before the practice was abolished in that state.
If you are or were in a common-law marriage, you may be eligible for Social Security benefits based on your current or former spouse's earnings record. This includes survivor benefits, disability benefits, and retirement benefits. This is true for same-sex couples as well as heterosexual couples. However, you will need to provide evidence to prove that you were in a valid, legally recognised common-law marriage. This may include:
- Statements from each spouse affirming the marriage, as well as statements from a blood relative of each spouse
- If your spouse has died, you will need to provide your own statement affirming the marriage, along with statements from two blood relatives of your deceased spouse
- Other evidence to support your claim, such as a determination by a court or another agency that you had a valid common-law marriage
- Mortgage or rent receipts, insurance policies, or bank records
It's important to note that the rules and requirements for common-law marriage vary from state to state, so it's always best to check with the SSA to determine your eligibility for any benefits.
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Benefits for divorced common-law spouses
In the United States, only 15 states and the District of Columbia recognize common-law marriages. The requirements for common-law marriages vary from state to state, but generally, the Social Security Administration (SSA) will only recognize a common-law marriage as valid if the following requirements are met:
- The common-law marriage must be contracted in a state where common-law marriages are recognized.
- The couple must live together and hold themselves out to the public as husband and wife.
- There must be an agreement to marry, which proposes a marital status that can only be terminated by death, divorce, or annulment.
- Both individuals must be legally capable of entering into a valid marriage, such as having the mental capacity to marry or not being legally married to someone else.
If you are seeking to claim Social Security benefits based on your former common-law spouse's earnings record, you must provide evidence to the SSA to prove that you were in a valid common-law marriage. This evidence includes statements from each spouse affirming the marriage, as well as statements from a blood relative of each spouse. If your former common-law spouse has died, you will need to provide your statement affirming the marriage, along with statements from two blood relatives of your deceased spouse. In some cases, you may be able to substitute other evidence, such as a court determination, to support your claim.
It is important to note that the SSA follows state law when determining whether a common-law marriage is valid, so it is recommended to consult an attorney or the specific state laws to understand the requirements and benefits that may apply in your situation.
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Frequently asked questions
Yes, you can claim Social Security benefits based on your common-law spouse's earnings, but only if your common-law marriage is recognized by the state in which you live.
If both spouses are alive, you will need to provide signed statements from both spouses affirming the marriage, as well as signed statements from two blood relatives of each spouse. If your spouse has died, you will need to provide your own signed statement affirming the marriage, along with signed statements from two blood relatives of your deceased spouse. These statements should include why the signer believes there was a marriage between the two persons. You may also need to provide other evidence, such as mortgage/rent receipts, bank records, and insurance policies.
The Social Security's website has a state-by-state description of how each state treats common-law marriage. Additionally, you can refer to state-specific resources, such as the Texas State Law Library, which provides legal research guides on common-law marriage and Social Security benefits.
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