My partner and I aren't legally married but have been living together for more than 15 years. Are we eligible for Social Security spousal benefits or survivor benefits if something should happen to either one of us?
This question is increasingly relevant, so thanks for asking. According to a 2019 Pew Research Survey, a larger share of adults ages 18-44 have cohabited (59 percent) than have ever married (50 percent). You might think as more and more people choose to live together rather than marry, the laws that focus on traditional spousal benefits would also change. Not so.
The simple answer to your question is that unless you live in a state that recognizes common-law marriage, neither you nor your partner are eligible for Social Security spousal or survivor benefits. However, if you live in a state that does, or a state that recognized common-law marriage in the past, you could be eligible for benefits—though it may not be quite so simple. That's because while the Social Security Administration (SSA) follows the laws of individual states regarding common-law marriage, those state laws can vary considerably. And that's where it can get complicated.
Let's start with the general definition of common-law marriage.
Common-law marriage is about intent—not time
There's a misconception that common-law marriage is established by the length of time partners live together. That's not entirely true. While cohabitation is a requirement in most states, there's no exact time period. More important than time is how the partners present themselves.
First of all, both have to be legally able to enter into a marriage, meaning both must be old enough (usually 18) and not married to someone else. Other factors beyond living together can include having joint accounts, owning property together, referring to each other as spouses, wearing wedding rings and generally being seen in the community as a married couple.
Since you and your partner have been together for 15+ years, chances are you fit the general description. So now it depends on where you live.
Individual states have their own requirements
States that currently recognize common-law marriage are Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas and Utah, as well as Washington D.C. Several other states recognize past common-law marriages up to a specific date, but that date is different in each state. There are also several states that don't recognize common-law marriages themselves but will recognize such marriages from other states.
If that's not complicated enough, the requirements for establishing a common-law marriage also vary by state. So the first thing to do is check your own state's current regulations. Another thing to be aware of is that the recognition of common-law marriage doesn't automatically extend to same-sex couples in most states.
You still have to provide "proof" to the SSA to get benefits
Even if you and your partner live in a state that allows for common-law marriage and meet all the state requirements, the SSA won't just take your word for it and grant you benefits. When you apply, you each have to provide an official statement affirming your marriage, and a statement from a blood relative of each spouse. If one partner has passed away, the SSA wants a statement from the surviving spouse plus statements from two blood relatives of the deceased and a blood relative of the surviving spouse. You may also have to provide evidence such as bank statements, insurance policies or mortgage/rent receipts.
It's important to understand how marriage can affect your benefits
While money should never be the sole reason to marry, there are certain financial advantages, and they can be significant when it comes to Social Security. For instance, if there's a big disparity in your incomes, a lower-earning spouse can get up to 50 percent of a higher-earning spouse's benefit if it would be greater than their own. Plus, if the higher earner predeceases the lower earner, the surviving spouse would get 100 percent of the higher earner's benefit. This may not change your attitude toward marriage, but I think it's important to get the facts so you'll know what you may be gaining—or giving up—based on your marital status.
Beyond benefits: Ways to protect yourself and each other
Married or not, there are other ways to make sure you and your partner are protected in case something happens to either of you.
- Save for retirement—Retirement accounts are always individual, even if you save together. If you have a 401(k) or similar plan, contribute enough to at least get any employer match. No 401(k)? There are other ways to save, including an IRA and an HSA.
- Update your beneficiaries—Designate primary and secondary beneficiaries on your retirement accounts and insurance policies. Don’t make assumptions about who your beneficiaries are.
- Title property accurately—If you own property together, be sure each of you is listed on the title. An unnamed partner would be vulnerable to losing the property in the case of splitting up or death
- Look into employee benefits—Check with an employer's HR department to see what benefits apply to partners. This can include health and life insurance, dependent benefits and more.
- Have the right insurance—Whether or not you have domestic partner insurance benefits through an employer, make sure you each have adequate health care coverage. The same goes for life and disability insurance. Keep in mind that what you have through work may not be enough.
- Do some basic estate planning—Creating a basic estate plan will help protect you both. Each of you should at least have a Will designating the other as an heir, if that's your desire, and naming a guardian for any dependents. Also, have an advance health care directive on file with your doctor and hospital. If you choose, you can give each other power of attorney for both financial and health care decisions should either of you become incapacitated.
While Social Security spousal and survivor benefits can be a financial plus, if you're not eligible, you and your partner can still take steps to provide your own financial security. Talk to each other and agree on what you need to do—for yourselves and for each other. As your situation changes, talk to a financial advisor and attorney to make sure you have the right plan in place.
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