Q: In the past, I've read that there can be Social Security benefits for an unmarried partner. We've lived together for 22 years. His divorce was finalized in March 2004, and his ex-wife has remarried. Can I apply for spousal benefits? Do I have to be a certain age? How many years post-divorce does the government require before I can be considered a legal partner able to collect benefits? --JA via email
A: You want to be sure you'll qualify for Social Security on your partner's record? Marry the guy.
Nine months after you tie the knot, you'll be eligible for a widow's benefit in the event of your husband's death. And two years after you marry, you'll be eligible for a spousal benefit. The earliest you can collect a widow's benefit is age 60. The earliest you can collect a spousal benefit is age 62.
That said, what you read is sometimes true: You may qualify for those benefits without getting married if you happen to live in a state that recognizes 'common law' marriage, which exists without a license or a ceremony. "The Social Security Administration tends to go with the state's definition of 'spouse'," explains Linda Lauria, an agency spokeswoman in New York City.
(This does not mean that the agency recognizes same sex marriages, which are now legal in Connecticut, Maine, Massachussetts, New Hampshire, New Jersey, and Vermont. The federal 'Defense of Marriage' law specifically prohibits federal recognition of same sex marriages.)
The states that recognize 'common law' marriage are Alabama, Colorado, Georgia (if the relationship began before 1/1/97), Idaho (if the relationship began before 1/1/96), Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Ohio (if the relationship began before 10/10/91), Oklahoma, Pennsylvania (if the relationship began before 1/1/05), Rhode Island, South Carolina, Texas, and Utah.
But just because you've lived together for a long time doesn't mean you have a legitimate 'common law' marriage. You also must have held yourselves out as a married couple, which usually means using the same last name, referring to each other as 'my husband' and 'my wife', and filing a joint tax return.
And both of you must have been free to marry.
"If there's a legal impediment to the marriage, it isn't a valid common law marriage," says Lauria. In your case, of course, there was an impediment for many years: your partner's ex-wife. So no matter where you live, you can only have had a common-law marriage since 2004.
Please send your questions to Lynn@LynnBrennersFamilyFinance.com. I'm sorry I can't respond personally to every email. Questions are only addressed online.
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