Q & A
Ask Rusty – Can My Mother Get Benefits from Common Law Marriage?
Dear Rusty: My 71-year-old mother has a very small Social Security income. It is not enough to find her housing. I am working to file for increased VA benefits, as she is a veteran. Her partner of 21 years (common law spouse) has passed away, and we have an appointment next week to apply for spousal benefits. First question: We have the option of applying for her partner’s SS benefits, and we are completing the form SSA-753 statement regarding marriage. Is there anything else I should have to be prepared for the appointment? Second question: My mother and father were married for 27 years before they divorced. I was going to request filing for his benefits as it is easier to prove than a common law relationship. Is there anything else you could recommend being prepared for the appointment? Signed: Concerned Daughter
Dear Concerned Daughter: Whether your mother will be able to collect a survivor benefit from her “common law” spouse will depend upon which state their relationship was established in. Social Security’s rules specify that for their relationship to be recognized as a “marriage” for Social Security benefit purposes, it must have been established in a U.S. State which recognizes “common law” marriage. And only a small number of U.S. states currently do.
For clarity, it is only required that the relationship be established in a State which recognizes “common law” marriage. If their relationship started in a state which recognizes it, and they subsequently moved to and resided in another state which doesn’t, SS will recognize that relationship as a valid marriage and your mother will be entitled to survivor benefits based upon the deceased’s SS record (100% of the deceased’s benefit amount).
States which currently recognize “common law” marriage are Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah, plus the District of Columbia. A number of other States previously recognized common law marriage but have since stopped doing so. If the relationship was established in a state which, at the time, recognized common law marriage, Social Security will also recognize the marriage. Various U.S. states have, over the years, changed their laws regarding common law marriage, and Social Security will evaluate your mother’s eligibility for survivor benefits based upon where and when the common law relationship was established. They will be looking for proof of the marriage relationship, such as joint bank account statements, joint asset ownership records (e.g., a car registered in both names, joint home ownership, etc.) and it would be good to have multiple forms of such proof available. They may also require a copy of the death certificate for her common law spouse and, obviously, his Social Security number.
Regarding your mother’s other alternative for benefits from her marriage to your father, if your mother and father were married for 27 years, she may be eligible for a spousal benefit from your father as his ex-spouse. If your father is still living, and if she isn’t
eligible for an SS survivor benefit from her common law relationship (SS doesn’t recognize her common law marriage), your mother may still be eligible for as much as 50% of what your father’s SS benefit was at his full retirement age (FRA), plus any COLA increases given since his benefits started. Spouse benefits from a living ex-spouse are not as much as the survivor benefit from a current spouse – the survivor benefit is up to 100% of what the deceased spouse was receiving at death; the benefit from a living ex-spouse is up to 50% of the ex-spouse’s FRA benefit amount (if that is more than your mother is eligible for on her own SS record). Of course, if your father is deceased, your mother would be eligible for a survivor benefit on his record, which would be equal to 100% of the benefit amount your father was receiving at his death.
This article is intended for information purposes only and does not represent legal or financial guidance. It presents the opinions and interpretations of the AMAC Foundation’s staff, trained and accredited by the National Social Security Association (NSSA). NSSA and the AMAC Foundation and its staff are not affiliated with or endorsed by the Social Security Administration or any other governmental entity. To submit a question, visit our website (amacfoundation.org/programs/social-security-advisory) or email us at ssadvisor@amacfoundation.org.