A reader wrote in with this question: “I am in a common law marriage with my partner. Can I get Social Security spousal benefits when she retires next year, or survivor’s benefits if she passes away? I’m a decade younger than she is.”
This might seem like a simple question, but the truth is that the answer depends a variety of factors. Those factors include (but are not limited to) the state in which you live, how long you’ve been together, and whether or not you have the documents needed to prove you’re common-law married.
Generally speaking, unmarried partners do not qualify for spousal and survivor benefits. But you may be able to secure them if you meet all the requirements set in place by the Social Security Administration (SSA). To do this, you must:
- Live in a state where common-law married couples are legally equal to those in ceremonial marriages.
- Meet the time requirements of your state (i.e., show you’ve lived together long enough to count as married.)
- Provide all documentation your state requires in order to recognize your common law marriage as legitimate.
What Is Common Law Marriage?
The SSA defines a common law marriage as “a non-ceremonial marriage.” It further says that for common-law married partners to qualify for certain benefits, they must meet all required criteria in the state where both partners live. So, your state’s laws apply just as much as the SSA’s policies do for awarding benefits to eligible romantic partners.
Which States Acknowledge Common Law Marriage?
The following states recognize common law marriage as equal to traditional, ceremonial marriages:
- New Hampshire
- South Carolina
In addition, while not expressly allowing for common law marriage, Rhode Island has case law that recognizes common-law married couples. Oklahoma also requires couples to obtain a marriage license and has case law upholding common law marriage.
To complicate matters more, some states previously recognized couples as common-law married but no longer do. Those states include:
Why is this important? Because the state where you live determines whether your common law marriage counts as a legal one. This is because the SSA follows each state’s laws when making spousal or survivor’s benefit determinations in such cases.
So, depending on when your common law marriage began in these states, your union could possibly be grandfathered in. This means that the laws that applied at the time of your union would overrule the ones in place today.
What Makes a Common Law Marriage?
Some people mistakenly think that if a couple lives together for enough years, they are common-law married. This is not true. The laws of each state set the rules for what makes such a relationship legally count as a marriage.
For example, the state of Kansas doesn’t require evidence of both parties living together after the agreement. But in Montana, the third requirement to show you’re common-law married is “the parties confirmed their marriage by cohabitation and public repute.”
What Kind of Documentation Do You Need?
Like the answers above, the answer to this question is a complicated one. The documentation required to show you and your partner are common-law married varies from state to state.
Furthermore, even if you have whatever documentation your state requires to validate your common law marriage, the SSA requires additional information.
When you apply for spousal or survivor benefits, the SSA will require that provide an official statement about your common law marriage. It will also require that you, your spouse, and at least two blood relatives make statements about the marriage.
If both you and your partner are alive and you want to claim spousal benefits, one blood relative from each of your families must fill out a form.
If your partner passes away and you want to claim survivor’s benefits, the SSA requires you to submit all the following:
- A statement from the surviving spouse,
- Statements from 2 blood relatives of your deceased spouse, and
- Another statement from 1 blood relative of yours (i.e., the surviving spouse).
What About Same-Sex Marriages? Do Those Qualify for Spousal or Survivor’s Benefits?
Same sex marriage became official in all 50 states on June 26, 2015, with the Obergerfell v. Hodges decision. This means the information above also applies to same-sex marriages, including common-law married couples.
Should I Work With a Social Security Benefits Lawyer?
The laws surrounding both common law marriage and Social Security spousal and survivor benefits are complicated. It can be impossible to understand every nuance of your own case if you’re not well-versed in both. That’s why it’s smart to ask a local Social Security attorney to review your claim for free. Attorneys make you 3x more likely to win benefits compared to those who file without legal assistance. You’ll pay $0 for claim help if the SSA doesn’t award you benefits, so you have nothing to lose.
Lisa Allen is a writer and editor who lives in suburban Kansas City. She holds MFAs in Creative Nonfiction and Poetry, both from the Solstice Low-Residency Program in Creative Writing at Pine Manor College. Prior to becoming a writer, Lisa worked as a paralegal, where she specialized in real estate in and around Chicago.