Common-law marriage and retirement benefits
Dear Dr. Don,
I lived with a man as his common-law wife for 10 years in Michigan. We have a son. The man died in 1991 at a time when we were no longer living together. I moved to Georgia and took Social Security at age 62 in 2005. I've since been told that I could have filed for Social Security benefits as his common-law spouse and collect retroactively. I know neither Michigan nor Georgia recognize common-law marriages. But I hear that as a resident of Georgia, I can be "grandfathered in." What would you advise.
-- Joy Jointly
I think you need a lawyer, not necessarily a financial advice writer. Social Security does recognize common-law marriages, but only as determined by state law. Here's what it presents on its FAQ page on the topic. "Social Security follows the state laws. So, check the laws in your state. To get survivors or spouses benefits you generally must live in a state that recognizes common-law marriage. However, most states (even those that do not recognize in-state common-law marriage) will recognize a common-law marriage entered into in another state that does."
Michigan hasn't recognized a common-law marriage that was created within its borders since Jan. 1, 1957. Georgia requires that you met its standards for common-law marriage before 1997. I have a sense that you want the 10 years you were with your son's father in Michigan to count toward Georgia's standards. It doesn't sound right to me, but that's why you might want to hire a lawyer.
Even if you are able to make your case for survivors benefits as a common-law spouse, Social Security has limitations on how far back it will go to make retirement benefits retroactive. Typically, that would be just six months.
Thanks to Edward Lafferty, spokesman for the Social Security Administration, for helping me with this reply.
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