Social Security Survivor Benefits for a Common-Law Spouse

Some states recognize common-law marriages. Social Security recognizes common-law marriages for residents of those states that recognize common law marriages, but the spouse must prove the marriage. If a common-law spouse dies, the survivor spouse may receive Social Security survivor benefits based on the work history of the deceased worker.

Common-Law Marriage

A common-law marriage requires more than just living together. You must live together for a long, but unspecified, period of time and you must represent yourself as married or hold yourself out as man and wife. You must intend to be married. No impediment to marriage can exist while you are in a common-law marriage. In other words, you must be able to get married, or legally able to make a contract. Marriage to someone else eliminates your ability to form a marriage contract.

States Allowing Common-Law Marriages

The number of states allowing common-law marriage has decreased since 1990 from 15 to 11, and New Hampshire restricts common-law marriage to inheritance issues. If you live in Colorado, Montana, Oklahoma, Utah, Texas, Kansas, Iowa, Alabama, South Carolina, Rhode Island or the District of Columbia, you may have a common-law marriage for Social Security purposes.

Common-Law Marriage Proof

You may have to prove your common-law marriage with statements of two blood relatives of the deceased spouse for Social Security survivor benefits, using the forms provided by Social Security. You may also need bank account records, rent receipts, property deeds or similar legal documents showing your relationship. You as the spouse need a prepared statement as well. If the survivor has a biological child by the deceased worker, Social Security may not require much proof beyond the birth certificate of the child.

Other States

If you were in a common-law marriage in a state that accepts common-law marriages and moved to another state, you may still qualify for Social Security survivor benefits. Most states accept common-law marriages made in other states where it is legal, although it is not legal in that state. If that is the case, Social Security may accept your common-law marriage for qualification for survivor benefits.

Survivor Benefits

A common-law spouse who proves the relationship receives 71.5 percent of the deceased worker's benefit at age 60, or age 50 if disabled. Social Security pays 75 percent to a spouse of a deceased worker who cares for a child belonging to the deceased who is under the age of 16, or a disabled child of the deceased of any age. The child under 18, or 19 in high school, receives 75 percent of the deceased worker's benefit as well. A spouse who is full retirement age receives 100 percent of the benefit the deceased worker would receive at full retirement age. Age 66 is full retirement age for workers born between 1943 and 1954. Social Security reduces benefits to comply with maximum limitations of 150 to 180 percent of the worker's total entitlement.

References

• Social Security Online: Recognizing Common Law Marriage: Dec. 2010
• Social Security Online: Marriage Requirement to Receive Survivors Benefits: Jan. 2011
• Social Security Online: Social Security Ruling 61-9: Validity of Common-Law Marriage
• Nolo: Common Law Marriage FAQs
• Nolo: Which States Allow Common-Law Marriage?

Resources

• Social Security Online: Understanding the Benefits: Jan. 2010