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Common-Law Marriage and Social Security Benefits

Common-Law Marriage and Social Security Benefits

The definition of marriage has always been a hot topic. In the past several years, we’ve seen more and more court cases and news debating this, and as a result, more people from this community have been wondering:

What about the impact of common-law marriages and Social Security benefits? How do these types of relationships get classified in the eyes of the Social Security Administration?

Let’s take a look at the topic today so you can fully understand how Social Security benefits and common-law marriages go together.

The Social Security Administration’s Rules on Common-Law Marriages

The Social Security Administration is not known for their simple, plain language in most cases. So you might be surprised to learn that when it comes to common-law marriages and Social Security benefits…

The rules are actually quite straightforward! According to the SSA, a common-law marriage is a valid marriage. And as such, a common-law couple will be able to claim the same benefits as a couple who followed the “traditional” marriage route.

Common-Law Marriages Are Entitled to the Same Benefits As “Traditional” Marriages

The Social Security benefits you receive as a common-law marriage couple include spousal benefits, survivor benefits and even benefits from an ex-common law spouse.

While that part of the rule is straightforward, there is a bit of a catch: meeting the requirements of a common-law marriage.

These requirements are not as easy as some may think to achieve. Many people incorrectly assume that a common-law marriage is sealed after a certain time period of living together, but it’s not always so simple.

What Qualifies as a Common-Law Marriage?

To make sure I fully understood the rules before sharing them with you, I reached out to my friend Lisa Shoalmire.

Lisa is an Elder Law attorney and a founding partner of the Ross & Shoalmire, LLP Elder Law Firm.

Lisa is well-versed in the rules around common-law marriages and how the SSA sees these relationships. Here’s what she told me:

“Generally, the Social Security Administration will recognize a common-law marriage as valid if the following requirements are met:

First, the common law marriage must be contracted in a state where common-law marriages are recognized. Less than half of the fifty states recognize [these relationships as legally binding].

In states that do recognize common-law marriage, usually the parties must live together and hold themselves out to the public as husband and wife. The cohabitation does not have to be in the State where the marriage agreement was made.

Second, there must be an agreement to marry. This agreement must:

  • Propose a permanent union that is exclusive
  • Be in the present tense
  • Propose a marital status that cannot be terminated at will but can be terminated only in the same manner as a “traditional” marriage, i.e., death, divorce or annulment

Third, the marriage must be entered into by mutual consent of the couple to become husband and wife from that time forward.

Finally, both individuals must be legally capable of entering into a valid marriage such as having the mental capacity to marry or not otherwise be legally married to someone else at the time of entering into the common-law marriage.”

Lisa went on to tell me that many have assumed they were in a common-law marriage, but often find out otherwise when the relationship ends or a death occurs.

If you have questions about the validity of your marriage, you need to see an attorney who can help with this. To find one near you, visit LegalMatch.

What You’ll Need for Social Security Benefits in a Common-Law Marriage: Proof of Marriage

Let’s say you believe you meet all of the requirements for a common-law marriage. What do you need to have in order to apply for Social Security  benefits?

The Social Security Administration mandates that you must provide evidence of your marriage. Evidence to prove a common-law marriage in the States that recognize such marriages must include:

  • A statement from each spouse and a statement from a blood relative of each, if both spouses are living, OR
  • If either spouse is deceased, you will need a statement from the surviving widow or widower and statements from two blood relatives of the decedent, OR
  • A statement from a blood relative of each spouse if each individual has passed away.

The statements from a relative must be made on the Social Security Administration’s official form. You can find this form, called a Statement Regarding Marriage or Statement of Marital Relationship, at any Social Security office.

For more information, see the language on proving eligibility for a common-law marriage in the Social Security Handbook here

Note that the Social Security Administration will also ask you to attach evidence that confirms that you had a common-law marriage, such as mortgage/rent receipts, bank records, insurance policies, and so on.

Don’t Forget: The Rules May Vary, Depending on Your State

It’s important to note that the rules in each state vary greatly on what is required to have a recognized common law marriage.

Since the Social Security Administration takes its lead from individual state law when determining benefits eligibility, it’s important to understand where the individual states differ.

The Social Security’s website has a state-by-state description of how each state treats common law marriage if you need more information.

Have More Questions?

If you still have questions, you could leave a comment below, but what may be an even greater help is to join my FREE Facebook members group. It’s very active and has some really smart people who love to answer any questions you may have about Social Security. From time to time I’ll even drop in to add my thoughts, too. 

You should also consider joining the 100,000+ subscribers on my YouTube channel! For visual learners (as most of us are), this is where I break down the complex rules and help you figure out how to use them to your advantage. 

One last thing that you don’t want to miss: Be sure to get your FREE copy of my Social Security Cheat Sheet. This handy guide takes all of the most important rules from the massive Social Security website and condenses it all down to just one page.

Social Security Divorced Spouse Benefits

If you are planning for retirement, and have prior marriages, it’s critically important to fully understand the rules around Social Security divorced spouse benefits.

Divorce is difficult. Though I’ve never personally been through it, I’ve watched as dozens of my clients and friends have gone through the process.

From my side of the desk, I’ve yet to see a single divorce where either spouse emerged with a higher net worth after the split. Everything changes.

The change brought on by divorce requires major adjustments to your financial plans for the future. One of the most important things you’ll need to do is adjust your plans for retirement. Now you may not have the income to continue saving at your prior level, but you probably won’t need as much to fund your lifestyle in retirement. All of this is up to your individual wishes, goals and dreams. But one thing is for sure, if you are over 50 you need to plan on part of that retirement being funded by Social Security.

So before you sit down with your financial planner to rethink your retirement income strategy, let me explain more about how Social Security benefits for a divorced spouse actually works and why you need to know.

Are There Social Security Benefits for a Divorced Spouse?

Will Your divorce impact your ability to file for Social Security? There’s some good news to start. What divorce may not impact is your ability to file for Social Security on your ex-spouse’s record.

All you need to do is meet the qualifications. The basic rules are that:

  1. Your marriage must have lasted at least 10 years.
  2. You must be 62 or older (60 if they are deceased).

That’s pretty much it — but if we stop there, we’re only telling part of the story about how Social Security divorced spouse benefits work. Let’s take a closer look.

If you want a much deeper dive, I’d highly recommend Jim Blakenship’s book, Social Security for the Suddenly Single

How Social Security Divorced Spouse Benefits Work, Depending on Your Circumstances

The spousal benefit rules for married individuals require the higher earning spouse to file first before a spousal benefit can be paid to a lower earning spouse.

But that’s not how it works with divorce cases. You can collect on your ex-spouse’s record even if he or she hasn’t applied for benefits!

There are some caveats, though. You must have been divorced for at least two years and your ex-spouse must be eligible for benefits, and typically this means that your ex must be at least 62 years old.

If you’ve met the length of marriage rules, and your ex-spouse is still living, you are eligible for the greater of:

  • your own benefit, or
  • up to 1/2 of your ex-spouse’s full retirement age benefit.

Here’s an example:

Your ex-spouse has a full retirement age benefit amount of $2,000. Based on that alone, you could expect to receive $1,000 spousal benefit at your full retirement age.

However, the actual amount you receive may be less, based upon the age that you file for benefits.

Depending on how old you are when you file, the spousal benefit amount will range between 32.5% and 50% of the higher-earning spouse’s full retirement benefit.

In the chart below, we’ll assume that your full retirement age is 67 (the full retirement age for those born in 1960 or later). We’ll continue the assumption that your ex-spouse’s full retirement age benefit is $2,000 per month:

socials-security-spousal-benefits-from-an-ex-spouse

You probably noticed the penalty for filing early. You may have also noticed that the spousal benefit does not increase beyond your full retirement age.

So, if a spousal benefit is highest benefit that you are entitled to, there is usually not a good reason to delay filing beyond your personal full retirement age.

And remember: if you are divorced, and your ex-spouse has not yet filed for benefits, you must have been divorced for at least two years before you can claim benefits based upon your ex-spouse’s history.

Filing for Benefits When You’ve Had Multiple Marriages, Or Your Ex-Spouse Is Deceased

Social Security rules say that as long as all marriages have ended, you are not currently married, and you’ve met the length of marriage rules, you can choose the highest benefit from any of your ex-spouses.

If circumstances change — perhaps an ex-spouse passes away — then you could switch from a spousal benefit on one spouse to a survivors benefit on another.

If your deceased ex-spouse was the higher income earner, your benefit would be equal to his or her full benefit, minus any reduction for your age. (You can file for a survivor benefit as early as age 60.)

Before you do this, however, be warned: If you remarry prior to age 60, you lose the right to claim on an ex-spouse’s record, at least until the subsequent marriage(s) end in death or divorce.

If you remarry after age 60, you are eligible to receive benefits based on the highest of your benefit, your current spouse’s benefit, or your deceased spouse’s survivor benefit.

If You Want to File for Benefits on Your Ex-Spouse’s Record, Use This Special Strategy to Yield Higher Benefits

Don’t grab your keys and head off to your local Social Security office just yet. Just because you can file on your ex-spouse’s benefit doesn’t mean that you should.

At the very least, you need to know your options about some filing strategies that could drastically increase the amount of cash flow and lifetime benefits you could receive.

If your ex-spouse is deceased, you have met the length of marriage rules, and don’t exceed the income limitation, you could file a restricted application for a survivor benefit as early as age 60 and switch back to your own benefit at full retirement age or later.

Here’s an example to illustrate how this works:

Let’s say that Karen has her own Social Security benefit available of $2,000 at her full retirement age of 67. Currently she’s 62, and is also eligible for a survivors benefit of $1,300 today.

She could file for only the survivors benefit and let her benefit increase with delayed retirement credits. At age 70, she could switch back to her own benefit which would have grown to $2,480 (not including cost of living adjustments!).

This strategy is only available for those eligible for a survivors benefit — but if you qualify, it can help you reap big rewards in attaining more retirement cash flow.

Don’t Expect the Social Security Administration to Tell You This

The rules for Social Security benefits for former spouses are pretty generous, and the program can provide much-needed income during retirement years. Making sure that you understand the rules is key to receiving the maximum benefit to which you are entitled.

The amount of benefits you, or your survivor, will receive can often hinge on how much you know! But don’t expect the Social Security Administration to look at all of your prior marriages and make a determination about which eligible benefit is best for you.

They make it pretty clear…proving that there are eligible benefits from prior marriages is the responsibility of the claimant.

Unless you know the rules, it’s pretty easy (and common!) to miss benefits from a prior marriage.

Adding to the challenge is that once you are divorced, the Social Security Administration stops sharing information about your ex-spouse’s benefit amount with you.

That’s great for privacy but bad for obtaining information and planning.   However, if you ask them specific questions, they will answer.

See their publication on Social Security and Divorce here.

At least now you know that you need to dig into the rules and figure out your options before you make a filing mistake — but you could still be concerned that you might miss out on benefits.

In that case, if you still have questions you could leave a comment below… but what may be an even greater help is to join my FREE Facebook members group.

It’s very active and has some really smart people who love to answer any questions you may have about Social Security. From time to time I’ll even drop in to add my thoughts, too. 

You should also consider joining the 330,000+ subscribers on my YouTube channel! For visual learners (as most of us are), this is where I break down the complex rules and help you figure out how to use them to your advantage. 

One last thing that you don’t want to miss: Be sure to get your FREE copy of my Social Security Cheat Sheet. This handy guide takes all of the most important rules from the massive Social Security website and condenses it all down to just one page.