Common Law Marriage and Social Security Survivors Benefits
The Social Security Administration provides for the payment of benefits under another s earning record if the wage earner passes away. These benefits are called survivors benefits. A widow or widower may receive benefits under their deceased spouse s earning record in two situations. In the first instance, the widow may be entitled to reduced retirement benefits at age 60 or full retirement benefits as of the full retirement age or older. The second instance is when the widow is disabled, at least 50 years of age and their disability started before or within seven years of the wage earner’s death.
The widow is entitled to one half of the benefits owed to the deceased wage earner.
The Social Security Administration does not stack the benefits owed to the individual. For example, if a widow is receiving $700.00 in disability benefits per month under her own earning record and her deceased spouse would be owed $1200.00 in disability benefits before his death, then the widow would not receive survivors benefits. The widow would be entitled to one half of the deceased spouse’s benefit or $600.00. The widow is not entitled to the survivor’s benefits; since, the survivor’s benefits is less than the benefits already being paid.
Survivor’s benefits provide the possibility for litigation in two separate areas: first, whether the individual is disabled and second, whether the decedent and the Claimant were actually married? In most circumstances, the primary focus is on whether the individual is disabled; however, we have encountered several cases involving common-law marriage where we had to prove that the couple was actually married.
Section 416(h)(1)(A) of the Social Security Act, 42 U.S.C. 416 (h)(1)(A), provides that an applicant is the widow(er) of an insured individual if the courts of the state in which the insured individual was domiciled at the time of her death would find that the applicant and insured individual were validly married at the time of her death. Id. Thus, the Social Security Administration must apply the law of the state concerning marriage where the deceased was domiciled.
Prior to 2005, the Commonwealth of Pennsylvania recognized the institution of common-law marriage. In re Estate of Stauffer, 504 Pa. 626, 476 A.2d 354, 356 (1984). Generally, a common-law marriage may be created by uttering words in the present tense with the intent to establish a marital relationship. Commonwealth v. Sullivan, 484 Pa. 130, 398 A.2d 978, 980 (1979). However, where no evidence of utterance can be proved, Pennsylvania law also permits a finding of marriage based upon reputation and cohabitation when established by satisfactory proof. In re Estate of Wagner, 398 Pa. 531, 159 A.2d 495, 498 (1960). In 2005, the Pennsylvania General Assembly abolished common law marriage; consequently, any evidence of the common law marriage must pre-date 2005.
An advocate should present evidence of reputation of the individuals as husband and wife. This evidence can be in the form of affidavits from friends and family members. However, evidence of the couple filing joint tax returns and owning property together as joint tenants by the entirety before 2005 is far more persuasive. This type of evidence removes the prospect of the claim being denied on the basis of credibility. The presentation of the case in this manner helps to eliminate the emotional toll of having to defend a relationship for a widow who is still grieving from the death of their loved one.