Lately, the definition of marriage has been a hot topic. With all of the court cases and resulting news, I knew it wouldn’t take long for someone to ask me about Social Security benefits and common-law marriages.
Thankfully, the Social Security Administration is pretty straightforward on their rules. In their eyes, a common-law marriage is a valid marriage. As such, a common-law couple will be able to claim the same benefits as a couple who followed the “traditional” marriage route. These benefits include spousal benefits, survivor benefits and even benefits from an ex-common law spouse.
The tricky part is meeting the requirements of a common law marriage. These requirements are not as easy as some may think. Many people incorrectly assume that a common-law marriage is sealed after a certain time period of living together. The truth is, it goes much deeper than that.
Thankfully, this was not a new area for her. She said, “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 even recognize common-law marriage. 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.”
She 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.
Proof of Marriage
So once you’re convinced that you have met all of the requirements for a common-law marriage, what is required to apply for 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:
-If the husband and wife are living, a statement from each and a statement from a blood relative of each;
-If either the husband or wife is dead, a statement from the surviving widow or widower and statements from two blood relatives of the decedent; or
-If both a husband and wife are dead, a statement from a blood relative of the husband and from a blood relative of the wife.
The statements from a relative must be made on the Social Security Administration’s form. The Statement Regarding Marriage or Statement of Marital Relationship form is available at any Social Security office.
Here’s the language on proving eligibility in the Social Security Handbook.
They also ask that you attach evidence that confirms that you had a common-law marriage, such as mortgage/rent receipts, bank records, insurance policies, etc.
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 following State Common-Law marriage laws were taken from the Social Security’s website.
|State||Common-Law (Non-Ceremonial) Marriage Laws|
|Alabama||Recognized. The elements of a valid common-law marriage in Alabama are:
Where a marriage (ceremonial or common-law) is contracted while an impediment exists, cohabitation of the parties in good faith after removal of the impediment establishes a valid common-law marriage as of the day the impediment is removed. This is true even if the parties at the time the marriage was contracted were aware of the impediment, but they nevertheless manifest or demonstrate their desire to live as a married couple (i.e., conduct themselves and their affairs as would a married couple). Continued cohabitation after the removal of the impediment raises a presumption that a valid common-law marriage arises immediately upon removal of the impediment.
|Alaska||Recognized from 03/07/1939 through 12/31/1963; a marriage license was required, but solemnization was not mandatory; however, there must have been a marriage contract. Not recognized after 12/31/1963.|
|American Samoa||Not recognized since at least 2007. If a common-law marriage is alleged, submit to the regional chief counsel (RCC) for a legal opinion.|
|Arizona||Not recognized.For the possibility that a putative marriage may have been created, see GN 00305.085B. If persons, while domiciled in Arizona, contract a common-law marriage in a state where common-law marriages can be contracted, the marriage is not recognized as valid in Arizona if the parties intended by their actions to evade Arizona’s laws.|
|California||Not recognized. However, for the possibility that a putative marriage may have been created, seeGN 00305.085C.|
|Colorado||Recognized.A common-law marriage does not require any kind of ceremony but only the agreement of the parties, followed by the mutual and open assumption of a marital relationship.A temporary stay by nonresidents does not establish a common-law marriage. The State statute provides that a common-law marriage entered into on or after 09/01/2006 is not recognized as valid unless, at the time the common-law marriage is entered into:
For the possibility that a putative marriage may have been created, see GN 00305.085D.
|District of Columbia||Recognized.An express mutual agreement to enter into a present marriage, and cohabitation after the agreement, are required.If the parties agree to be husband and wife in ignorance of, or with the knowledge of, a legal impediment to their marriage, upon removal of that impediment, a common-law marriage results between the parties if they continue to live together as husband and wife.|
|Florida||Recognized before 01/02/1968.The elements of a common-law marriage were:
If the relationship was not valid in the beginning because one party had a prior undissolved marriage, their cohabitation as husband and wife, after removal of the impediment and before 01/02/1968, created a common-law marriage; no new agreement of marriage after removal of the impediment had to be established.
If a purported common-law marriage occurred before 01/02/1968, and such marriage was not valid because of an impediment, but such impediment was removed after 01/01/1968, then a common-law marriage did not arise.
|Georgia||Recognized before 01/01/1997. Common-law marriages entered into on or after 01/01/1997 are not recognized and are not valid.To establish a valid common-law marriage prior to 01/01/1997, the parties must have:
An agreement of marriage may be inferred from cohabitation and reputation (i.e., holding themselves out to the world as husband and wife) unless there is other evidence indicating that such an agreement was not present. At least one party must have shown good faith to establish a common-law marriage by cohabitation and reputation.
Consummation of agreement may be inferred by an express agreement of present intention to be man and wife.
Where parties entered into a ceremonial marriage that was not valid because of an impediment, and one of the parties believed in good faith that the marriage was valid, their continued cohabitation as husband and wife after the impediment was removed is sufficient to establish a valid common-law marriage.
|Guam||Not recognized since at least 1948. If common-law marriage is alleged, submit to the RCC for a legal opinion.|
|Idaho||Recognized before 01/01/1996.|
|Illinois||Not recognized. In 2005, Illinois abolished common-law marriages contracted after June 30, 1905.For the possibility that a putative marriage may have been created, see GN 00305.085E.Illinois does not recognize the common-law marriages of its domiciliaries that arise out of brief sojourns in common-law marriage States.However, where parties reside in another state at the time of contracting a common-law marriage that was valid in that state, such marriage is considered valid upon their move to Illinois.Effective 10/01/1977, a ceremonial marriage that is prohibited because it was entered into prior to the dissolution of a prior marriage becomes valid when the impediment is removed and the parties continue to cohabit. If the parties did not cohabit subsequent to 09/30/1977, this statute is not applicable, and the marriage is not validated.|
|Indiana||Recognized before 01/01/1958.Prior to that date, if parties attempted to contract a marriage in which there was an impediment, but both parties believed in good faith they were validly married, a valid common-law marriage was created by their having lived together in Indiana as husband and wife after removal of the impediment. If either party knew of the impediment before its removal, there must have been an agreement or ceremonial marriage after removal of the impediment to establish a valid marriage.The elements necessary to establish a common-law marriage were:
A common-law marriage must have been proven by clear and convincing evidence.
Indiana recognizes common-law marriages validly entered into in other states.
|Iowa||Recognized.Evidence of cohabitation of the parties after the agreement to be husband and wife is not required.|
|Kansas||Recognized.Evidence of cohabitation of the parties after the agreement to be husband and wife is not required.In the absence of proof to the contrary, an agreement to be husband and wife may be implied where the parties cohabited as husband and wife and were reputed to be such.Where a marriage is contracted while an impediment exists, cohabitation of the parties in good faith after removal of the impediment establishes a valid common-law marriage.|
|Louisiana||Not recognized.For the possibility that a putative marriage may have been created, see GN 00305.085F.While a common-law marriage, valid where entered into, is ordinarily recognized, a relationship originally bigamous and known to be such by the parties is not recognized as a common-law marriage in the absence of a new ceremonial marriage or specific marital agreement, even though continued cohabitation after removal of the impediment constitutes a common-law marriage under the laws of the state where entered into.|
|Massachusetts||Not recognized.However, by statute, if parties domiciled in Massachusetts enter into a ceremonial marriage while one party is barred from remarrying by a Massachusetts divorce, and one party entered into the marriage in good faith, a valid marriage arises upon removal of the impediment if the parties are domiciled in Massachusetts at that time. A new ceremonial marriage is not required.|
|Michigan||Recognized before 01/01/1957.If the parties agreed to be husband and wife in a state not recognizing common-law marriage, their mere cohabitation as husband and wife in Michigan would have established a valid common-law marriage.Even though there was no evidence of an express agreement to be husband and wife before 01/01/1957, it is possible to infer such an agreement. This inference can be based on long cohabitation of the parties during which time they consistently held themselves out to friends, relatives, and to the public as husband and wife.Michigan recognizes common-law marriages validly entered into in other states.A common-law marriage must be proven by clear and convincing evidence.Proof of a common-law marriage includes:
Notoriety is the most important element necessary to establish a common-law marriage.
|Minnesota||Recognized before 04/27/1941. For the possibility that a putative marriage may have been created, see GN 00305.085G.While Minnesota does not recognize common-law marriages that arise out of brief sojourns in common-law States, it does recognize a common-law marriage if the couple takes up residence (but not necessarily domicile) in another state that allows common-law marriages and the parties establish the public reputation in that state of having assumed the marital relationship as well as other elements of a common-law marriage applicable in that state.|
|Mississippi||Recognized before 04/05/1956.|
|Montana||Recognized.Under Montana case law, the party wishing to establish the existence of a common-law marriage must prove, by a preponderance of the evidence, that:
Short periods of cohabitation and holding out as husband and wife are insufficient to establish the “public repute” required by the third element. See PR 05605.029 for an opinion with an example of short periods of cohabitation in Montana. If you still question whether a short period of cohabitation is sufficient to establish public repute, submit to the RCC for a legal opinion.
|Nevada||Recognized before 03/29/1943.|
|New Hampshire||Recognized. Persons who are otherwise competent to contract marriage together, who cohabit and acknowledge each other as husband and wife, and who are generally reputed to be such for three years, and until one of them dies, are deemed legally married. All events must occur while the parties are domiciled in New Hampshire. Under New Hampshire law, a marriage is absolutely void where either party to the marriage has a former spouse still living and knows that the former marriage has not been legally dissolved. For further details, see PR 04805.032.|
|New Jersey||Recognized before 12/01/1939. Evidence of cohabitation of the parties after the agreement to be husband and wife is not required.|
|New Mexico||Not recognized.|
|New York||Recognized before 01/01/1902. Not recognized from 1902 through 1907. Recognized from 1908 through 04/28/1933. Not recognized on or after 04/29/1933, unless the common-law marriage was validly contracted in a different state or country, and so long as the marriage does not violate New York positive law or natural law. Whether the marriage was validly contracted in the foreign jurisdiction is determined by the law of the jurisdiction in which the marriage allegedly was established.New York positive law prohibits the recognition of marriages between:
New York natural law generally prohibits polygamy, incest, and marriages offensive to the public sense of morality to a degree generally regarded with abhorrence.
|North Carolina||Not recognized.|
|North Dakota||Not recognized.However, North Dakota recognizes common-law marriages validly entered into in other states or nations.|
|Commonwealth of the Northern Mariana Islands (CNMI)||Recognized until at least 2004. If common-law marriage is alleged, submit to the regional chief counsel (RCC) for a legal opinion.|
|Ohio||Recognized before 10/10/1991. To contract a common-law marriage before 10/10/1991 the elements of a common-law marriage, which clear and convincing evidence must establish, were:
A temporary stay by nonresidents is insufficient to establish a recognized common-law marriage.
Common-law marriages established in Ohio on or after 10/10/1991 are not recognized. Ohio recognizes common-law marriages validly entered into in other states or nations.
|Oklahoma||Recognized.To establish a common-law marriage, the parties must:
A temporary stay by nonresidents does not suffice as grounds for establishing a common-law marriage.
|Oregon||Not recognized.A relationship recognized as a marriage in another state where it was consummated is recognized in Oregon, even though such relationship would not be a marriage if the same factors were relied upon to create a marriage in Oregon. For details on surviving spouse under Oregon intestacy law, see GN 00305.086.|
|Pennsylvania||Recognized on or before 01/01/2005.To contract a common-law marriage on or before 01/01/2005, Pennsylvania law required clear and convincing evidence that the parties exchanged words in the present tense, spoken with the specific purpose of establishing the legal relationship of husband and wife. Although Pennsylvania did not require the parties to exchange a specific form of words to create a common-law marriage, it was essential that the parties agreed to be husband and wife.Where one party is deceased, or is otherwise unable to testify about the exchange of words necessary to have created a common-law marriage, Pennsylvania courts presume that a common-law marriage existed if there is sufficient proof that the parties lived together as husband and wife on a constant basis and had a general and broad reputation of being married. This presumption that a common-law marriage existed is rebutted where there is evidence indicating that the parties did not agree to be husband and wife.Where the evidence shows that, when the relationship began, the parties were simply living together as an unmarried couple, or that one of the parties was already married and, therefore, could not agree to be another person’s spouse, Pennsylvania assumes that the relationship as an unmarried couple continued, until a change in the relationship to a valid common-law marriage is established by clear and convincing evidence, and the change occurred on or before 01/01/2005.Pennsylvania law may recognize the existence of a common-law marriage where a ceremonial marriage was void because of a legal impediment. For details on void ceremonial marriages and removal of an impediment, see GN 00305.070A.1.Where only one party to a ceremonial marriage knew it was void because of an impediment, the marriage is valid without a new agreement if the parties continued to live together and continued to hold themselves out as husband and wife, as of 01/01/1954, or the date of removal of the impediment, whichever is later.Where both of the parties knew the marriage was void because of an impediment, a new agreement was necessary after the removal of the impediment and the parties had to continue to cohabit as husband and wife.If neither party knew of the impediment to the marriage, mere cohabitation of the parties as husband and wife after removal of the impediment validates the marriage from the date the impediment was removed.In situations where a common-law marriage contracted on or before 01/01/2005 was void because of a legal impediment to the marriage, request a legal opinion from the RCC to determine whether Pennsylvania law would validate the marriage after the impediment was removed.|
|Puerto Rico||Not recognized.|
|Rhode Island||Recognized.In addition, where parties contracted a bigamous, ceremonial marriage, a valid common-law marriage arises from the parties’ cohabitation as husband and wife, after removal of the impediment. No new agreement of marriage is required if the evidence establishes clearly and convincingly that the parties intended at all times to be husband and wife. It is not necessary to contract the bigamous marriage in good faith by either party. However, if a bigamous common-law marriage is involved and the parties were aware of the impediment, a new agreement is necessary.|
|South Carolina||Recognized.Where parties contract a bigamous marriage in good faith, and both parties believe they are married, a valid common-law marriage arises if they cohabit as husband and wife after removal of the impediment. However, if either party knew of the impediment, a new agreement of marriage after removal of the impediment, followed by cohabitation as husband and wife, is required to establish a common-law marriage.|
|South Dakota||Recognized before 07/01/1959.South Dakota recognizes common-law marriages validly entered into in other states.|
|Tennessee||Not recognized.However, where parties free to marry lived together for a long time and held themselves out to the public as husband and wife, both parties, as well as third parties, are in law not permitted to deny that they were validly married, provided there is an affirmative showing that:
This relationship, in effect, gives the survivor and children of the marriage inheritance rights in Tennessee; it has no effect outside Tennessee.
|Texas||Recognized.The passage of time and ceasing of cohabitation will not terminate a common-law marriage once it is in existence.IMPORTANT: A temporary stay in Texas by nonresidents does not establish a common-law marriage.Prior to 01/01/1970:Good faith at the inception of the relationship on the part of at least one of the parties, or a new agreement after removal of the impediment, is required. Good faith means intent to marry, together with the belief that there is no impediment to such marriage.If the parties enter into a relationship and all elements for a valid common-law marriage are present, except there is a prior undissolved marriage known to the parties, there is no need for a new express agreement to give rise to a valid common-law marriage after removal of the impediment. Such agreement may be implied from continued cohabitation of the parties and their holding out to the public that they are husband and wife if, during their relationship, they maintained a continuous matrimonial intent.Effective for applications filed between 01/01/1970 and 07/31/1994:If the claimant’s common-law marriage was not valid because there was a prior undissolved marriage, a common-law marriage becomes valid when the prior marriage is dissolved (i.e., by death, annulment, or divorce) if, since that time, the parties lived together as husband and wife and presented themselves to others as being married (commonly referred to as “holding out”).A claimant applying for benefits based on the existence of a common-law marriage must prove the validity of the marriage by:
Effective for applications filed between 08/01/1994 and 08/31/1995:
A claimant applying for benefits based on the existence of a common-law marriage must prove the validity of the marriage by:
KEY: One-Year Time Limit:
If a claimant fails to initiate a proceeding proving the validity of a common-law marriage prior to the expiration of the one-year time limit, consider such marriage void. For an explanation of this one-year time limit policy, see GN 00305.076C.
CAUTION: If a claimant attempts to prove that he or she initiated a proceeding to prove a common-law marriage between 08/01/1994 and 09/01/1995, submit the claim to the RCC for a legal opinion following procedures in GN 01010.815.
Effective for applications filed between 09/01/1995 and 01/16/2003:
A claimant applying for benefits based on the existence of a common-law marriage must prove the validity of the marriage. See requirements listed under the previous period 08/01/1994 and 08/31/1995, numbers 1 and 2.
KEY: Two-Year Time Limit:
If a claimant fails to initiate a proceeding proving the validity of a common-law marriage prior to the expiration of the two-year time limit, consider such marriage void. For an explanation of this two-year time limit policy, see GN 00305.076C.
Change of Position effective for applications filed or pending on or after 01/17/2003:
A claimant applying for benefits based on the existence of a common-law marriage must prove the validity of the marriage. See requirements listed under the period 08/01/1994 and before 09/01/1995, numbers 1 and 2.
KEY: Two-Year Time Limit and Rebuttal Presumption:
If a claimant fails to initiate a proceeding proving the validity of a common-law marriage prior to the expiration of the two-year time limit, presume such marriage void. A claimant can rebut this presumption by proving that the criteria for establishment of a common-law marriage occurred by a preponderance of the evidence.
To meet the preponderance of evidence standard, evidence of cohabitation and holding out must prove the establishment of a common-law marriage. If a claimant cannot rebut the presumption in accordance with Texas law, we consider the parties never to have been married. For an explanation of this change of position with respect to the two-year time limit policy, see GN 00305.076C.
|Utah||Recognized.Effective 04/27/1987, a common-law marriage is recognized in Utah if it arises out of a contract between a man and a woman who:
Utah recognizes common-law marriages validly entered into in other states.
The determination or establishment of a marriage by court or administrative order must be initiated during the relationship, or within one year following the termination of that relationship. Evidence of a marriage may be manifested in any form.
For application of the one-year time limit and the effective date, see GN 00305.076D.
|Virgin Islands||Recognized before 09/01/1957.|
|Washington||Not recognized. Washington recognizes common-law marriages validly entered into in other states.|
|West Virginia||Not recognized.|
|Wisconsin||Not recognized after 1917.Wisconsin recognizes common-law marriages validly entered into in other states. If parties enter into a common-law marriage in good faith in a state where such marriages could be contracted during a period when an impediment to their marriage exists, Wisconsin recognizes their marriage as valid if they later live in Wisconsin and cohabit as husband and wife after removal of the impediment. A valid marriage arises without any new agreement of marriage by the parties.Wisconsin does not recognize a common-law marriage of its domiciliaries that arises out of brief sojourns to common-law marriage States.|
|Wyoming||Not recognized.However, Wyoming recognizes common-law marriages validly entered into in other states or nations.|
|Bigamy||Bigamy is the act of entering into a marriage while still married to another person.|
|Change of Position (COP)||Change of position (COP) occurs when a policy or legal precedent we previously followed to adjudicate cases changes as the result of subsequent court decisions, other applicable legal precedents, or new policy considerations.|
|Clear and convincing||Clear and convincing is a standard of evidence that is strong and persuasive.|
|Cohabitation||Cohabitation means the parties live(d) together as husband and wife.|
|Common-Law Marriage||Common-law marriage is a non-ceremonial marriage. The criteria (and recognition of a common-law marriage) depend on individual state or foreign law. For general details of common-law marriage, see GN 00305.060.|
|Contract/Contracted||Contract/Contracted means the parties enter(ed) into a legally binding agreement.|
|Holding Out||Holding out means the parties live(d) together as husband and wife andpresent(ed) themselves to others as being married.NOTE: In all claims, this definition applies when the state recognizes common-law marriages; however, in Title XVI claims, we may find couples to be “holding out” using criteria not linked to specific state law. For details on determining whether a man and woman are holding themselves out as husband and wife, see SI 00501.152.|
|Natural law||Natural law is law that stems from a shared human morality.|
|Pending claim||A pending claim is an unadjudicated application. The filing date may be based on a protective filing, open application, or reopening of a prior claim under administrative finality. For details on protective filing, see GN 00204.010. For details on open applications, see GN 00204.025.|
|Positive law||Positive law refers to man-made laws.|
|Preponderance of evidence||Preponderance of evidence is evidence that, when fairly considered, produces the stronger impression and is more convincing as to its truth when weighed against the evidence in opposition. This does not mean that a certain number of pieces of evidence must be present to constitute preponderance. It is possible that one piece of evidence is so convincing that, when weighed in opposition to any other evidence, it conveys the stronger impression of truth.|
|Prima facie||Prima facie means at first view or glance.|
|Putative marriage||A putative marriage is a relationship in which, under the laws of some states, a party to a void marriage may acquire inheritance rights as a spouse. For details on putative marriage, see GN 00305.085.|
|Sojourn||Sojourn means a short stay at a place. In some states a common-law marriage can arise from a temporary stay within the state’s borders, if accompanied by holding out as husband and wife, even though the parties were never domiciled in that state. Check the appropriate states’ laws to determine whether the state of sojourn recognizes common-law marriage. Then determine whether the facts of the sojourn establish a common-law marriage. It may be necessary to submit the case for an RCC opinion following the procedures in GN 01010.815.|
|Void marriage||A void marriage is a marriage that is legally nonexistent from the beginning under state law (i.e., the parties to the marriage are considered never to have been husband and wife).|
|Voidable marriage||A voidable marriage is a marriage that is defective and can be judged void (annulled) but is considered valid unless and until declared void as a result of court action on its validity.|