Lynn Brenner's Family Finance

Are Unmarried Partners Ever Entitled to a Spousal Social Security Benefit?

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.

(c) Lynn Brenner, All Rights Reserved

Can My Partner's Children Contest His Will?

Q: My companion and I have lived together for 12 years. We purchased a house together. He has made me the beneficiary of his retirement account and an insurance policy. His will states that I am the executor of his estate and leaves everything to me.

He has three grown children, two of whom have can't seem to get their lives in order. I've decided to stop being involved with their situations, since it gets quite frustrating.  My companion doesn't want to listen to it either, but he won't tell them that, for fear they'd stop seeing him.

Since we're not legally married, do I have a leg to stand on as far as our possessions? For example, last year he bought me a new car as a birthday present, but the title and registration are in his name.  If his children contest the will, do they get half of all our possessions? -- MD, New York

 

A: Take it easy. It’s harder than you think to get a will overturned.

Yes, your partner's kids can contest his will, since they'd be his heirs if it didn't exist. (For what they'd have to prove to get it invalidated, click here. )

For the sake of argument, let's say they convince a court to throw out the will.

They could then inherit 100% of the assets that are solely in his name.  But anything that you and your partner owned jointly with right of survivorship -- like your house, for example -- would be totally protected.

Jointly owned assets automatically go to the surviving joint owner whether or not there’s a will.  That’s also true for any account that has a named beneficiary: IRAs, 401(k) plans, life insurance policies and annuities all automatically go to the named beneficiary.

The car in your partner's name is a different matter.

"If there's a fight over the car, you may lose," says Stephen J. Silverberg, an estate lawyer in East Meadow New York. Under New York law, a surviving child can transfer a car worth $14,000 or less into his or her own name with nothing more than the title and a copy of the death certificate.

What about other gifts?

As a general rule, whether or not an item was a gift is largely matter of donor's intention – and the burden of proving that intention is on the person who claims it was a gift. "If I gave you a $1,000 check, was it a gift or a loan? Unless you can prove otherwise, the law assumes it's a loan," Silverberg says. "Did I write ‘gift' in the lower left corner of the check? Did I write you a note, 'Here's a thousand bucks I want to give you'?"

But even in the absence of documentary proof, your longstanding relationship would give some weight to your claim to household furnishings and other possessions: "If two people live together for 12 years, that implies some intent even if they aren’t married," says Silverberg.

His advice: You and your partner should document your intentions by writing a letter, addressed to his kids and all your other relatives, stating that you love each other and have chosen your belongings together, and that everything belongs jointly to both of you. Sign the letter, and keep it with your wills, with instructions that it be opened after your deaths.