Could a Common-Law Wife Collect Social Security Survivor Benefits?

Ask Rusty – Will My Friend's Fiancée be Entitled to a Survivor Benefit?

Dear Rusty: I have a very good friend who has cancer and will begin chemotherapy this week. He is 71 years old and is currently receiving Social Security benefits. He has been living with his fiancée for a little more than 2 years, but they have been a couple for about 15 years and will be married in the next few weeks. She is 60 years old.

I am naturally concerned about his, and her, future so my questions are:

· What, if anything, should he and his wife do to ensure that she gets his Social Security benefits?

· What benefits will she be entitled to, and how soon will she be able to begin receiving them after his death?

Signed: A Friend with Questions

Dear Friend: You are kind to be concerned about your friend and his fiancée. Here's what you need to know:

Social Security goes by state rules when it comes to what is often referred to as "common law marriage." That means that whether your friend's fiancée will receive any benefits as a surviving spouse in a "common law" relationship depends on whether they live in a state which recognizes common law marriage. Most states do not, but state laws have changed over the years and many states which once recognized such unions as "marriage" no longer do. Although they may have "been a couple" for 15 years, if your friend and his fiancée have been living together for only two it is likely only the last two years will count for Social Security benefit purposes. So, whether your friend's fiancée will get anything when your friend dies depends on where they live - unless they get married, in which case the rules are different.

In order for a married widow(er) to receive surviving spouse benefits, the couple must have been married for at least 9 months. If they marry and your friend lives longer than 9 months thereafter, then his wife will be entitled to a surviving spouse benefit from her husband. The amount of his wife's benefit will be based upon the amount your friend is receiving at his death, adjusted for her age when she claims her surviving spouse benefit.

A surviving spouse can claim benefits from the deceased as early as age 60, but those benefits will be reduced for claiming before full retirement age (FRA). Taken at age 60, the wife's benefit would be 71.5% of your friend's SS benefit at his death. The wife need not claim the survivor benefit immediately; she could opt to delay claiming in order to get a higher percentage of the husband's amount. Survivor benefits reach maximum - 100% of the deceased's benefit amount - at the recipient's FRA.

So, if your friend and his fiancée now live in a state which currently recognizes common law marriage (CO, IA, KS, MT, NH, SC, TX, UT, RI, or in the District of Columbia), then your friend's partner will be considered his "wife" and entitled to survivor benefits as normal (the fiancée would need to prove they cohabitate in a marriage-like relationship to claim benefits).

If they do not live in one of those states, but they get married and the marriage lasts for at least 9 months, then the wife will be entitled to normal benefits as a surviving spouse (as described above).

But if the couple do not live in one of the above states which recognize "common law" relationships, or if their soon-to-occur marriage doesn't last at least 9 months, or if they do not get married, I'm afraid your friend's partner will not be entitled to any survivor benefits from your friend.

This article is intended for information purposes only and does not represent legal or financial guidance. It presents the opinions and interpretations of the AMAC Foundation's staff, trained and accredited by the National Social Security Association (NSSA). NSSA and the AMAC Foundation and its staff are not affiliated with or endorsed by the Social Security Administration or any other governmental entity. To submit a question, visit our website (amacfoundation.org/programs/social-security-advisory) or email us at ssadvisor@amacfoundation.org.

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