Benefits for People Who Live with the Disabled; Common-Law Marriage

Generally speaking people who live with you but with whom you do not have a familial relationship of certain types will not be able to draw benefits from your work record when you are receiving disability benefits. Unfortunately, this is true even if you share dependent children.

However, if you live in a state that recognizes common-law marriage, you should look into the question of whether you can claim common-law marriage. This is a rough list of states that might recognize a common-law marriage, or something like it. The list is very rough! Do not assume that a claim of common-law marriage will work because your state is on the list; do no assume it will not because your state is not on it!

  • Alabama.
  • Colorado.
  • District of Columbia.
  • Florida (if created before 1/1/68)
  • Georgia (if created before 1/1/97)
  • Idaho (if created before 1/1/96)
  • Indiana (if created before 1/1/58)
  • Iowa.
  • Kansas.
  • Montana.
  • New Hampshire
  • Ohio (if created before 10/10/91)
  • Pennsylvania (if created before Jan 1, 2005)
  • South Carolina
  • Texas, in certain circumstances

Each state’s laws might be a little different.

To give you some idea of how this might work, we will take as an example a couple who lives together in South Carolina, or any other jurisdiction that follows the ancient, and brilliant, English rule:

  • A person may prove he or she was married to someone of the opposite sex (or, possibly, since the Supreme Court decision about same-sex marriage, someone of the same sex? – this is a hot legal topic! Get a good lawyer!) if he or she shows, by the preponderance of the evidence, that
    • each party agreed to marry the other, and
    • that this agreement to marry was manifested after any legal impediment to the marriage, such as
      • a prior marriage of one of the parties, or
      • a disability to form intent, because of age or competency, or
      • cohabitation in a state that does not recognize common law marriage
    • Simple? No, because often it is hard to get evidence of such an agreement, so, there is a presumption of the agreement if you and your alleged spouse have cohabitated and your spouse has held you out as married. You prove this by getting documents, like tax returns, and statements from witnesses, preferably lots of them.
    • Simple now? No, because, if you wait until after your spouse’s death to prove marriage you have to do it by clear and convincing evidence.

Why is the common-law marriage concept a good one? Because the reason that married people get benefits off each other’s records is a presumption that the financial and personal affairs of these people are deeply entangled. That is sometimes true for formally married people, sometimes not. That deep entanglement, the reason for the rule, is almost always true for those who are common-law married. So recognition of common-law marriage is fair, often more fair than the normal marriage rules.