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Social Security recognizes a common-law marriage if:
- The couple lives in a state where common-law marriage is legal, or did so when the marriage began.
- The couple can show Social Security that they are in such a relationship (more on that below).
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Social Security regulations list 10 states that currently recognize common-law marriage (some by laws on the books, others by court precedents): Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas and Utah. The District of Columbia does, too. Rules on cohabitation and other criteria for establishing a relationship as a common-law marriage vary widely from state to state.
Sixteen more states formerly recognized such relationships, and if your common-law marriage began when the practice was still legal in your state and it met that state’s criteria, Social Security will affirm it. In most of those states, the question is largely academic; 11 stopped recognizing common-law marriages more than 50 years ago. The issue may be more pertinent if you were common-law married in Alabama (where the practice was outlawed in 2017), Georgia (1997), Idaho (1996), Ohio (1991) or Pennsylvania (2005).
Once you’ve cleared the state hurdle, it’s mainly a matter of Social Security paperwork. Both common-law spouses must complete a “Statement of Marital Relationship” (form SSA-754) and provide an additional statement from a blood relative affirming the marriage (form SSA-753). If your common-law spouse has died and you are seeking survivor benefits, you must provide your own statement, one from a blood relative of yours and two from blood relatives of the deceased. Social Security may seek corroborating evidence that the couple consider (or considered) themselves spouses, such as mortgage or rent receipts, insurance policies or bank records.
If you live in a state that does not recognize common-law marriage, you’re out of luck, Social Security–wise. Recognition of common-law marriages established abroad varies by country and may require an opinion from Social Security’s legal office; if you are in such a relationship, contact Social Security to ask about your status.
Keep in mind
- The children of common-law spouses who are both deceased may qualify for survivor benefits. In applying, they must provide an SSA-753 form from a blood relative of each parent.
- The question of Social Security benefits for common-law marriages between same-sex partners is legally unsettled. The Supreme Court‘s landmark Obergefell ruling required states to issue marriage licenses to same-sex couples; it did not specifically address common-law marriages. How states are applying Obergefell to such relationships is being addressed piecemeal, as relevant cases (for example, involving divorce or inheritance) work their way through state courts.