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Ask an Advisor: Can My Partner Collect Spousal Benefits From Social Security? We’re in a Common Law Marriage


Does Social Security recognize common law or do you have to be legally married? My potential life partner is currently on disability collecting Social Security in a neighboring state. If the spousal rate is higher, can he then collect that and also continue to claim his disability?

– Penny

Yes, the Social Security Administration (SSA) does recognize common law marriages. Both parties to a common law marriage are entitled to all of the same benefits as a couple in a traditional marriage. However, a person cannot receive both their Social Security Disability Insurance (SSDI) payment and the full spousal benefit at the same time.

Do you need help building a comprehensive retirement plan? Speak with a financial advisor today.

Verifying a Common Law Marriage

To recognize a common law marriage, the SSA first requires that the couple does have a valid common law marriage according to their state’s laws. This varies from state to state, but generally requires, in layman’s terms, that the couple intends to be married and presents themselves as such.

Provided you have a valid common law marriage, the SSA will need some additional documentation from you, including:

  1. Both spouses will need to complete and submit the form titled SSA-754 Statement of Marital Relationship.
  2. Each spouse will also need a blood relative to complete and submit another form called SSA-753 Statement Regarding Marriage.

In addition to the above forms, the SSA also asks that you submit evidence of your common law marriage “such as mortgage/rent receipts, bank records, insurance policies, etc.” (Whether you’re single, married or in a common law marriage, a financial advisor can help you plan for your retirement.)

Spousal Benefits vs. Disability

A couple that's in a common law marriage sits together and makes a plan for Social Security.

Establishing with the SSA that you are in a common law marriage entitles you and your spouse to the same benefits as couples in a traditional marriage. This, of course, includes spousal benefits.

If on their own record someone is entitled to both SSDI payments and spousal benefits, based on their spouse’s record at the same time, they can’t collect the full amount of both. Instead, they will get a combination of the two benefits that effectively results in them receiving the higher of the two.

For instance, suppose your spouse is collecting $1,200 per month in disability. Now, let’s say they could get a $1,500 monthly spousal benefit based on your earnings record. Your spouse can’t get the full amount of both benefits. Instead, they will receive their full SSDI benefit, plus the difference between their SSDI benefit and their spousal benefit.

For this example above, there is a $300 difference between the two benefits. As a result, your spouse’s benefit would be $1,500 total, which comprises the $1,200 SSDI plus the $300 difference between their disability and spousal benefits.

If you need additional help calculating your Social Security benefits or evaluating whether you should claim spousal benefits, consider speaking with a financial advisor.

Bottom Line

The SSA recognizes a valid common law marriage in the same way as a traditional marriage. You just need to ensure that your common law marriage is established according to the laws of your state. Then, you must file the appropriate paperwork.

Spouses cannot receive their own SSDI benefit and a full spousal benefit at the same time, though. However, they can receive a combination of the two that is effectively the same as receiving the highest one they’re eligible for.

Social Security Planning Tips

  • A financial advisor can help you determine when to claim Social Security within the context of your larger retirement plan. Finding a financial advisor doesn’t have to be hard. SmartAsset’s free tool matches you with up to three vetted financial advisors who serve your area, and you can have a free introductory call with your advisor matches to decide which one you feel is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
  • SmartAsset’s Social Security calculator can help you estimate how much your benefits could be a different claiming ages. Remember, waiting until age 70 will result in up to a 32% increase in benefits while claiming at 62 will reduce your lifetime benefits by as much as 30%.

Brandon Renfro, CFP®, is a SmartAsset financial planning columnist and answers reader questions on personal finance and tax topics. Got a question you’d like answered? Email and your question may be answered in a future column.

Please note that Brandon is not a participant in the SmartAdvisor Match platform, and he has been compensated for this article. Questions may be edited for clarity or length.

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