Marriage and Social Security


There is an old saying “when it rains, it pours” I’m not knocking rain we are in dire need of several inches or more.  However, 3 times in the last 2 weeks different issues regarding marriage and Social Security benefits have arisen that merit this month’s newsletter.

Case #1

What is a Common Law Marriage and how does it affect Social Security Benefits

Last week I was referred to a woman who lost your Common Law husband and wanted to determine if she qualified for survivorship benefit?  Social Security defers to the state as to what constitutes marriage.  Texas is one of 16 states that recognizes Common Law marriage, so what constitutes such a marriage.

Common law marriage makes you a legally married couple in every way, even though you never obtained a marriage license. If you choose to end your relationship, you must get a divorce, even though you never had a wedding. Legally, common law married couples must play by all the same rules as “regular” married couples. If you live in one of the common law states and don’t want your relationship to become a common law marriage, you must be clear that it is your intention not to marry.


Common Law Marriage: Yes. Requirements: (1) A man and woman who want to establish a common-law marriage must sign a form provided by the county clerk. In addition, they must (2) agree to be married, (3) cohabit, and (4) represent to others that they are married.
Same-Sex Marriage: No
Domestic Partnership / Civil Union: Same-sex and different-sex couples can register a domestic partnership in Travis County. You do NOT need to be a resident of the county to register.
Living Together/Cohabitation: Legal

BE AWARE – If you live in a state that does not recognize Common Law Marriages then you do not qualify for Spousal Benefits!  In the case above, since he had died, she has  to go court to prove that a common law marriage existed!  This probably means getting attorneys involved and include affidavits from relatives and friends.

Case #2

Couple lived together for 13 years and never got around to getting married, got married in January 2021, however he died a month later!

To receive survivorship benefits, one must be married for at least 9 months (except in case of accident).  In this case he had terminal cancer, thus she would not qualify for survivorship benefits.  Since she is a resident of Texas (see above) she is attempting to prove they had a Common Law Marriage. 

Case #3

Remarriage stops your divorced spousal benefits

Couple got married 11 years ago, but she never changed her name and never notified Social Security about her remarriage.  She was receiving divorced spousal Social Security benefits on her ex husband, which would have ceased upon her remarriage.

She was recently contacted by Social Security and now owes $46,000 in back benefits.

Case #4

Don’t remarry until you reach age 60

If you were married and your spouse predecease you, one should not remarry until they reach age 60.  If you remarry before your 60th birthday you no longer qualify for survivorship benefits on your deceased spouse.  This is also true if you were divorced and were married for at least 10 consecutive years.  This is extremely important if your ex spouse was older or is in poor health!  Even if your ex spouse has remarried it does not preclude either you or present spouse from claiming survivorship benefits!

Back when I was able to do public meetings, I often jested about the number of people that live in Retirement Communities (Sun City, Etc.) who lived together, but were not married.  I think one of main reasons was the ability to receive Social Security benefits on their ex spouses.  But as we can see from the above Case Studies, one needs to know the law and what is the right course of action in the long run!

Have a great month – Happy Day Light Savings Time!

Dave Zander, CFP®