Social Security Disability and Common-Law Marriage

By Tom Streissguth

Social Security pays disability benefits to qualified applicants who are unable to work due to a long-lasting illness or permanent injury. According to the Social Security rules, the spouse of a beneficiary can also draw benefits under certain conditions. Although federal law governs Social Security, state laws come into play when the question of common-law marriage arises.

Spouse Benefit Payments

Under the Social Security rules, the legal spouse of a disabled or retired beneficiary can draw spouse benefits starting at the age of 62. If the spouse waits until full retirement age -- which is 65 to 67, depending on the year of birth -- the spouse benefit is one-half of the disabled worker's benefit. Before full retirement age, Social Security reduces the amount of the benefit, so the earlier you begin taking spouse benefits, the lower the payments will be. At 62, for example, the spouse benefit would be only 35 percent of the covered worker's benefit. If the spouse would earn more on his own work record, Social Security pays the higher amount instead.

Common-Law Marriage

Social Security pays spouse benefits only to individuals who are legally married to beneficiaries, although divorced spouses in some cases also qualify. If you have not legally married, but have established a legally recognized common-law marriage, you may also qualify. Social Security relies on individual state laws to determine your eligibility. If the state you reside in recognizes the common-law marriage, so does the Social Security Administration, and spouse benefits are available starting at age 62.

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Qualifying for Common-Law Status

Not all states recognize common-law marriage. The ones that do set down specific requirements to prove there is a valid marriage. For example, the couple must typically live together; hold themselves out to the general public as married; use joint bank accounts; and share the same last name. As of mid-2013, Alabama, Colorado, District of Columbia, Georgia, Idaho, Iowa, Kansas, Montana, New Hampshire, New Mexico, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas and Utah allow common-law marriage. Even if a state allows domestic partnerships, civil unions or same-sex marriages, however, this does not mean it allows common-law marriage.

Out-of-State Common-Law Marriages

Social Security makes the eligibility determination when the spouse actually applies for benefits, using the laws of the state where the applicant lives at that time. But there is one exception to that general rule: Social Security recognizes a common-law marriage if the couple has moved from one state that legally recognizes such unions to another that does not. As long as the laws of the individual state extend legal status to common-law couples that have moved from another state, spouse benefits would be available.

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