Martin on Social Security

Part 2 – Topics

Family Benefits

Entitlement as Spouse

§ H 000. Entitlement as Spouse – In General

To receive spouse or surviving spouse benefits, it is necessary that the claimant be the wife, husband, widow, widower, divorced spouse, or surviving divorced spouse of an insured worker as those terms are defined in the Social Security Act.  Benefits are available to spouses of deceased workers and to spouses of workers who are receiving old-age insurance (retirement) or disability benefits.

To meet the definition of wife, husband, widow, or widower, the spouse benefit claimant must meet one of two state law tests or an independent Social Security test.  The independent Social Security test can result in the Agency recognizing a “deemed valid marriage” with the insured worker where state law does not.

To meet the independent federal test, individual must demonstrate that she or he:

(1) in good faith went through a marriage ceremony that would have resulted in a valid marriage had there not been a legal impediment of which the survivor was unaware, and

(2) was living in the same household as the worker at the critical time.

Those who qualify for spouse benefits on the basis of either state law test need not, at the point of benefits, be living with or supported by the insured worker.

Except in the case of survivors benefits received while caring for an eligible child, to meet the definition of surviving divorced spouse, the individual must have been validly married to the deceased worker for ten years and must have received a final divorce.

Prior to a series of Supreme Court decisions, handed down during the 1970’s, the Act’s spouse benefit provisions were very different for men and women.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ H 100. Spouse Issues – Marital Status – State Law – In General

A person qualifies for Social Security spouse benefits on the basis of state law if that person

(a) was the spouse of the deceased worker under the applicable law of the state in which the worker had permanent residence at the critical time, or

(b) had the same status under applicable state law with respect to the taking of intestate personal property as a widow or widower.

The first test is met if the courts of the relevant state would find that claimant and the insured worker were validly married at the critical time.  If the insured worker is still alive that critical time is the time of application for spouse benefits.  In the case of survivor’s benefits it is the time of the worker’s death.

Rhe second test, pertinent only in a limited number of states, is met if the claimant would have the same status as a spouse under the laws applied by the courts of the state in determining the devolution of intestate personal property.

Any question about whether members of same-sex marriages or civil unions recognized by state law can qualify on the basis of one or the other of these tests would seem to be removed by the Federal “Defense of Marriage Act.”  See 1 U.S.C. § 7.

Rev. 11/05

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ H 110. Spouse Issues – Marital Status – State Law – Common Law Marriage

Some states, although far fewer than a majority, recognize the validity of marriage by agreement – generally termed “common law marriage.” Such a marriage is valid in these states if the parties making the marriage agreement are of sufficient age and capacity to marry and have no prior undissolved marriages.  On the other hand, no license or particular ceremony or set of witnesses or officiating personnel are required.

Typically, a state recognizing common law marriage will require proof of an exchange of words in the present tense that reflect the parties’ intent to marry one another.  A couple that has a future intention to marry will generally not qualify, even though they have told others that they are married.  However, the critical issues tend to be matters of proof.  Some states allow proof of an agreement through a rebuttable presumption that arises upon proof of cohabitation and a couple’s holding themselves out to others as husband and wife.

A combination of standard conflicts of law principles and very tolerant common law marriage doctrine can produce a recognized legal marriage in situations involving very little contact with the common law marriage state.  For example, in Renshaw v. Heckler, 787 F.2d 50 (2d Cir. 1986), one couple’s infrequent travels from their home in New York (a state not recognizing common law marriage) through Pennsylvania (a tolerant common law marriage state) were held to establish a marriage which New York courts and therefore the Social Security program had to recognize.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ H 120. Spouse Issues – Marital Status – State Law – Validity of Ceremonial Marriage

Under some circumstances state law will characterize a ceremonial marriage as “voidable” rather than “void.”  A void marriage is one which has no legal effect and requires no legal action to dissolve.  A voidable marriage by contrast is one that, although involving some defect, has legal effect until and unless one of the two parties obtains a court order of dissolution or annulment.

The distinction bears on the state law qualification for Social Security spouse benefits.  A void marriage does not create the requisite status of husband or wife under state law which can be a basis for spouse benefits.  A voidable marriage establishes the requisite status so long as it has not been dissolved.  Examples of marriages that state law may characterize as voidable, not void, include marriage to a stepchild or to a person who, because of severe mental retardation, lacks the legal capacity to marry. Some situations, such as marriages which occur during a period of restriction following a divorce, may be treated differently depending on whether the second marriage takes place in the state that imposed the restriction or in a different state.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ H 130. Spouse Issues – Marital Status – State Law – Effect of State Law Presumptions

In cases where the insured has married more than once the issue of spouse benefit entitlement may reduce to one of fact: Was the first marriage dissolved prior to the worker’s entering into the second one.  In dealing with such fact questions, presumptions commonly play a major role.  Many states employ a presumption favoring the second marriage.  Their courts presume, in effect, that the first marriage ended in divorce.  In some states this presumption applies only when the first spouse is no longer alive.  In other states, the presumption comes into play even when the first spouse is alive and contesting the validity of the subsequent marriage.

When a state recognizes “common law” marriage upon proof of a statement of mutual intent to marry, but then presumes such an agreement upon adequate proof of a period of cohabitation and holding out to friends and relations as a married couple, the presumption carries over to Social Security spouse benefit determinations.

The reason such state law presumptions carry over to Social Security  determinations is that the Social Security Act’s reference to state law is to what the courts of the relevant state “would find.”

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ H 140. Spouse Issues – Marital Status – State Law – Validity of Divorce or Annulment

When a prior marriage has ended in a divorce of doubtful legality that doubt infects the validity of any subsequent marriage so long as the first spouse is alive.  If the second marriage is void due to a defective divorce it is as if the divorce had not taken place and the prior marriage remains undissolved.  Whether or not the second marriage is valid often involves the issue of whether one state will or must recognize a divorce granted by another state under the particular circumstances.

In all states, the existence of a prior undissolved marriage with a living spouse will cause a second marriage to be void.  Moreover, the subsequent death of the first spouse does not give validity to a ceremonial marriage which it lacked at the outset.  In states and situations where common law marriage may be recognized that doctrine may give validity to the second marriage after death of the first spouse.  But so long as the partner to the first marriage is alive, that marriage’s initial and continuing validity are inconsistent with the validity of a second marriage.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ H 150. Spouse Issues – Marital Status – State Law – “Putative Spouse” Under State Law

A few states grant rights of inheritance to so-called “putative” spouses.  These “putative” spouses qualify for spouse status under the provision of the Act that defines a spouse as anyone who would have spouse status under state intestate succession law.  The doctrine of “putative” spouses protects individuals who, in good faith, enter into a void marriage–typically void because of a prior undissolved marriage of the other party.

The Act now has a provision similar to the putative spouse doctrine, but that test carries conditions that do not apply to individuals who qualify under state law so it is still generally to a person’s advantage to meet the state law test.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ H 160. Spouse Issues – Marital Status – Focus on State Intestacy Law

A second state law test is met by those who although not generally recognized as spouses under state law are, nonetheless, accorded the same status as a spouse in intestate succession.  (The Act originally combined these two tests with the consequence that one could not qualify for spouse benefits without having the full status of spouse under state law and also the right to inherit so that a spouse who could not inherit did not qualify.)  The now disjunctive intestacy test has been held to be satisfied by those entitled to inherit “quasi-community property” as “putative spouses” under state law, i.e., individuals who, in good faith, entered into a marriage that could not be valid because a divorce was not final or effective.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ H 200. Spouse Issues – Marital Status – Marriage Deemed Valid Under Social Security Act, Not Under State Law – In General

Individuals who do not qualify as a spouse under the state law tests may qualify on the basis of a Social Security test that is, essentially, independent of state law.  This test can result in the Agency recognizing a “deemed valid marriage” with the insured worker where state law does not.  To meet this test the claimant must demonstrate that: she or he 1) in good faith went through a marriage ceremony that would have resulted in a valid marriage had there not been a legal impediment of which the survivor was unaware, and 2) was living in the same household as the worker at the time of the latter’s death or application in the case of a person claiming as the spouse of an old-age insurance or disability benefit recipient.  The impediment must either be procedural (e.g., the marriage ceremony was flawed) or the existence of an undissolved prior marriage.  If the parties are too young to marry or otherwise lack “capacity” this route to spouse benefits is unavailable.

Prior to a 1990 amendment, an individual eligible for spouse benefits on the basis of this “deemed valid” marriage test ceased to be entitled to benefits if another person qualified under state law for spouse benefits on the same worker’s account.  The amendment removed this eligibility provision which had received conflicting interpretations in the courts.  Under the new provisions a competing state law spouse and a spouse qualifying under the “deemed valid” marriage test can both receive benefits.  In cases where there are both types of spouse claimants, the state law spouse receives benefits outside the family maximum so that those benefits have no effect on the benefits received by the “deemed” spouse and any others whose benefits are subject to the maximum.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ H 210. Spouse Issues – Marital Status – Marriage Deemed Valid Under Social Security Act, Not Under State Law – Requirement of Good Faith

The statute specifies both that the claimant must have participated in a marriage ceremony in “good faith” and that the claimant shall not be eligible if it is determined that he or she entered “the purported marriage ... with knowledge that it would not be a valid marriage.”  In contrast with the putative spouse doctrine as applied in some states the “good faith” test is not a continuing one.  If the claimant later learns that the marriage was not valid, but otherwise continues to qualify as the spouse by way of a “deemed ... valid marriage” the test is met.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ H 220. Spouse Issues – Marital Status – Marriage Deemed Valid Under Social Security Act, Not Under State Law – Requirement That Claimant Be Living With the Insured

Those who qualify as a spouse under state law can be long separated from the insured at the time of the worker’s retirement, disability, or death or their own benefit application yet still be entitled to spouse benefits.  Those seeking to qualify on the basis of a marriage “deemed valid” under the independent Social Security test must, however, be living in the insured’s household at the time critical for benefits.  That time is the time of the insured’s death in the case of survivor’s benefits or the time of application if the spouse benefit claimant seeks benefits in relation to a worker’s retirement or disability.  This test is not always easy to apply since the Act considers the parties to be “living in the same household” despite temporary absences due to business, employment, illness or incarceration.  A particularly difficult situation involves a short absence of one of the parties accompanied by evidence of discord between the two of them immediately prior to the worker’s death.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ H 300. Competing Spouse Claims

The spouse benefit sections leave open the possibility of more than one eligible spouse.  This is explicitly the case with those who are eligible as divorced spouses.  But if state law allows, it is also conceivable that there may be a legal spouse and a putative spouse both eligible for benefits.  Commonly, though, the presence of two or more individuals who claim marriage to an insured worker creates a situation in which state law will recognize only one as spouse or the equivalent of spouse for inheritance purposes and will also lay down the relevant rules of evidence, burden of proof, and presumption with which the incompatible claims must be resolved.

If, under state law, the first of two competing spouses is still the legal spouse even though the insured had been separated from that claimant and living with the second spouse, with or without children, the second may still claim under a “deemed ... valid marriage.”

Prior to a 1990 amendment, an individual eligible for spouse benefits on the basis of the “deemed valid” marriage test ceased to be entitled to benefits if another person qualified under state law for spouse benefits on the same worker’s account.  The amendment removed this eligibility provision which had received conflicting interpretations in the courts.  Under the new provisions a competing state law spouse and a spouse qualifying under the “deemed valid” marriage test can both receive benefits.  In cases where there are both types of spouse claimants, the state law spouse receives benefits outside the family maximum so that those benefits have no effect on the benefits received by the “deemed” spouse and any others whose benefits are subject to the maximum.

The pre-1991 law was non-uniform because of differing interpretations of the Act’s treatment of “deemed valid” marriages when there was also or had been a spouse qualifying on the basis of state law.

The Agency’s interpretation of the provision was that once a spouse qualified for spouse benefits on the basis of state law a “deemed” spouse could no longer qualify, even if the amount of spouse benefits received by the competing state law spouse was small and even if those benefits  terminated.  Most courts that addressed the issue affirmed this view.  See, e.g., Dwyer v. Califano, 636 F.2d 908 (3d Cir. 1980).

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ H 400. Entitlement as Divorced Spouse – In General

To meet the definition of divorced spouse, the claimant must have been validly married to the deceased worker under applicable state law and must have received a final divorce.  Except in the case of survivors benefits received while caring for an eligible child, the divorced spouse must also show that marriage to the deceased worker lasted for ten years before the divorce became effective.

The Act’s special treatment of divorced spouses requires, at minimum, a two point reference to state law.  To qualify as a divorced spouse or surviving divorced spouse, one must first have been “married” to the insured “for a period of 10 years immediately before the date the divorce became effective.”  In determining whether that marriage test is met, state law applies.  The second point of reference, of course, has to do with the existence and timing of the divorce.

A 1990 amendment of the Act extended divorced spouse benefits to those who, although not validly married under state law, meet the Act’s “deemed valid” marriage test.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ H 410. Entitlement as Divorced Spouse – Duration of Marriage Prior to Divorce

To meet the definition of divorced spouse, the survivor must have been validly married to the deceased worker under applicable state law and must have received a final divorce.  The divorced spouse must also prove marriage to the deceased worker for ten years immediately before the divorce became effective.  This duration test does not apply to a surviving divorced spouse caring for an eligible child.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ H 500. Entitlement as Younger Spouse Caring for Eligible Child

Spouse benefits and surviving spouse benefits (including benefits for a surviving divorced spouse) are available prior to the respective age thresholds of 62 and 60 to spouses caring for a child of the insured who is entitled to child benefits.  Such benefits end when the child becomes 16 or ceases to be entitled to child benefits or the spouse ceases to care for the child.

The requirement that the spouse care for the child can sometimes prove difficult to apply.

In Mathews v. De Castro, 429 U.S. 181 (1976), the Supreme Court upheld the provisions of the Act that extend spouse benefits to younger spouses of retired or disabled workers who are caring for children also eligible for benefits but deny comparable benefits to younger divorced spouses.  The differential treatment had been attacked as a violation of the equal protection component of the Due Process clause of the 5th Amendment.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ H 600. Spouse Benefit Issues Having to do With Duration or Timing of the Marriage – In General

To qualify for spouse benefits, it is not sufficient for the individual to meet the marital relationship test at the time of application. In the case of spouses of old-age or disability benefit recipients the marital relationship must have existed for at least 1 year.  In the case of surviving spouses the marital relationship must have existed for at least 9 months. (This requirement is met as of the beginning of the month in which the relevant anniversary of the marriage occurs.)

Exceptions to the duration requirement exist for situations in which the claimant and the insured are the parents of a child or in which the insured died accidentally or in which the claimant was already eligible for Social Security or Railroad Retirement Act benefits as spouse, parent or child prior to the marriage.

In Weinberger v. Salfi, 422 U.S. 749 (1975), the Supreme Court upheld the 9 month duration of relationship requirement the Act applies to surviving spouses.  The Court found the resulting categories free from invidious discrimination and rationally based.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ H 700. Spouse Benefit Issues Having to do With Duration or Timing of the Marriage – Special Rules in the Event of Accidental Death

Surviving spouses who were married to the deceased worker less than 9 months before his or her death are not disqualified from receiving benefits if at the time of marriage the insured was expected to live for 9 months and the subsequent death was accidental or in the line of military duty or the two had previously been married for at least 9 months.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ H 800. Effect of Remarriage on Spouse Benefit Entitlement

There is a general rule that an individual receiving benefits as a surviving spouse or divorced spouse not be married.  For surviving spouses and surviving divorced spouses, however, the rule contains a major exception; it disregards marriages that occur after age 60 (or between 50 and 60 if the surviving spouse is disabled).

The rule applies, without that exception, to divorced spouses and those claiming mother or father benefits.

In all cases, a subsequent marriage ended by death or divorce poses no impediment once it is over.  The requirement is not that the individual not remarry, but rather that he or she be unmarried.

Rev. 11/05

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]