Retirement 2.0blog

Social Security benefits and common-law marriage: Oil and water?

In some cases, spousal benefits available without a marriage certificate

Oct 1, 2013 @ 12:01 am

By Mary Beth Franklin

I spend a lot of time answering readers' questions about Social Security benefits for married couples. But in some cases, spousal benefits are available to couples who live together as common-law partners without the benefit of a marriage certificate.

According to the Social Security Handbook, a common-law marriage is one in which neither a religious nor civil ceremony was held. In certain states, a common-law marriage may be entered into if a man and a woman agree to be married for the rest of their lives. Most states, even those in which a man and woman cannot enter into a valid common-law marriage, generally recognize a common-law marriage that has been validly entered into in another state.

But here's a twist posed by an InvestmentNews reader:

Mark Bass, a financial adviser from Lubbock, Texas, wrote to me about an interesting case. His clients, Robert and Carolyn, were married 19 years and later divorced. Robert, now 62, married Betsy eight years ago. Carolyn, now 61, has lived with Jim more than 15 years. They consider themselves married by common law.

Here's Mr. Bass' question: When Carolyn turns 62, can she file for spousal benefits based on her former marriage to Robert?

Generally, a person can receive benefits as a divorced spouse on a former spouse's Social Security record if he or she was married to the former spouse for at least 10 years, is at least 62 years old, is unmarried, and is not entitled to a higher Social Security benefit on his or her own record.

In addition, if the former spouse is eligible for a benefit, but has not yet applied for it, the unmarried divorced spouse can still receive a benefit if he or she meets the eligibility requirements listed above and has been divorced from the former spouse for at least two years.

“I know that if Carolyn is unmarried, she can receive spousal benefits on her ex-husband's earnings record,” Mr. Bass wrote. “But does her common law marriage affect her ability to receive those benefits?”

That's a great question and one that I have never encountered before. So I asked the folks at the Social Security Administration.

“Social Security follows the state laws when it comes to recognizing common-law marriage,” Social Security spokeswoman Kia Anderson confirmed in an e-mail. “Based on the limited information provided, it depends.”

Ms. Anderson recommended that Mr. Bass and his client Carolyn contact Social Security at (800) 772.1213 or visit her local office to inquire about her situation.

According to unmarried.org, Texas recognizes common law marriages between a man and a woman, but not same-sex couples. To establish a common-law marriage in the Lone Star State, a man and a woman must sign a form provided by the county clerk, must agree to be married, live together and represent to others that they are married.

So, the short answer is: I don't know if Carolyn's common-law marriage to Jim will make her ineligible for spousal benefits on her ex-husband's earning record. But it's certainly an interesting case. And I hope Mr. Bass shares his answer with the rest of us.

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