Can a Common Law Wife Claim Widow's Benefits?

By Heather Frances J.D.

Marriage determines eligibility for many government and insurance benefits, and most spouses have little trouble proving their marriage with a marriage certificate. However, marriage doesn’t always require a government-issued license and certificate. In a few states, couples can marry informally, creating a common law marriage. Generally, one spouse can collect benefits when the other spouse dies if their relationship met the requirements for common law marriage in their state.

Common Law Marriage

Common law marriage is a marriage created informally -- in accordance with the terms of state law but without a license or formal filing. Only a few states recognize common law marriage, including Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah and Washington, D.C. States that do not recognize common law marriages will generally recognize a common law marriage validly created in another state.

Proving Validity

Generally, for a common law marriage to be recognized, the partners must clearly represent themselves to others as husband and wife. For example, partners can simply agree to be married and begin introducing each other to others as “my husband” or “my wife.” The partners do not have to hold a marriage ceremony. If a woman wishes to use her status as a spouse, such as proving her eligibility for widow’s benefits, she must prove her marriage was valid. Evidence that may show the marriage’s validity includes bank statements, documents where the spouses indicated their married status or statements from others that indicate the couple represented themselves as husband and wife.

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Social Security

The Social Security Administration requires partners to be legally married to collect widow’s benefits, except in very limited circumstances. The Social Security Administration recognizes common law marriage as long as the marriage was created in a state that recognizes common law marriage, and the marriage must be valid in that state. If the partners did not meet the requirements for common law marriage in their state, or if they cannot prove their marriage, neither spouse can collect widow’s benefits through Social Security.

Military and Veterans Affairs

Many military and Veterans Affairs benefits are also based on marriage. A spouse might pursue military benefits if her deceased spouse was serving in the military at the time of his death or VA benefits if her spouse had previously served. The military and VA recognize common law marriages as valid, though informal, marriages, and spouses can receive benefits based on common law marriage. Generally, this means the spouses qualify for benefits if they entered a marriage that is valid in the state where it occurred; the spouse claiming benefits must be able to prove her marriage met the requirements of her state. The marriage cannot be a sham, merely intended to enable collection of benefits.

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