Hello Larry or Jerry,

My mother will be 75 years old in January 2021. She was divorced in 1978 and she moved in with her a new partner in 1991. They began filing taxes together in 1998. She filed for her own social security benefit in 2008, at age 62. She does not remember if she was asked if she was married or single at the time she filed, but if she was asked that question she would have said she was single as at the time she had no idea of common law marriage rules, or that receiving ex-spousal benefits would affect any future benefits. They told her she was also eligible to file under ex-spousal benefits from a previous marriage. She started receiving her own benefit of $762.00 plus the ex-spousal benefit of $78.00.
In 2019 my mother and her partner moved back to Kansas from Colorado. They talked with a trust attorney so she would be taken care of if anything should happen to her life partner, and learned at this time that they were considered common law married and since Kansas recognized common law marriage social security benefits should not be any issue. The attorney obviously did not know my mother was still receiving ex-spousal benefits of 78.00/mo. since my mother did not even remember herself.
In July 2020, my mother’s current husband/partner died from a rare brain problem. As part of the overwhelming process when your partner of almost 30 years dies unexpectedly, my mother contacted Social Security to change over her benefit to the widow’s benefit. His benefit had been 2100.00. She supplied Social Security with all requested information, and they first told her it did not appear there would be any problems. receiving her widow's benefit. However, after four and a half months worth of attempted calls to social security and trying to get an update, she was finally told two days before Thanksgiving she might be not be able to collect Widow's benefits at all due to the fact she claimed her ex-husbands benefit in the beginning, back in 2008. She had completely forgotten about the 78.00/mo and had not known it needed to be canceled/changed. Being as this is a huge difference, of course she would have cancelled/changed or whatever she needed to do. Now, in tears she is wondering how to completely re-plan and manage to stay in her current home.
I realize ignorance of the rules/laws is a poor excuse, but to be honest these laws/rules are lengthy, ambiguous, seem to vary state to state, and depend on how the person you talk with at the social security office interprets them. On top of this, having to remember how you filed as almost thirteen years earlier when we also know our memory declines with age. I imagine there are tremendous issues for our parents and their expected social security benefits.
Is there anything that she can do at this point to affect the current denial of SS benefits? Will she need a lawyer? Any help, information, or advice you may have would be greatly appreciated.
Also I would appreciate any information about possible upcoming legislation that you may know of, or that needs introduced in order to promote/bring about change in our current system. I would like to do what I can to help advocate for not just our aging population, but all people who must navigate through this system. I plan to also purchase your program to gain more knowledge- I wish we had your program prior to the realization of how difficult it can be trying to figure it out alone. Maybe the way the system is, it has always taken advantage of people who need and deserve the this help trying to get benefits they have paid for their whole lives, but it certainly has been an shock for me. My eyes are opening now.

Thank you for your help,
Lori

Hi Lori,

If your mother's claim for widow's benefits is disallowed, she'll have the right to file an appeal (https://www.ssa.gov/pubs/EN-05-10041.pdf). Hiring an attorney isn't required for an appeal, but it might be helpful in your mother's case since state laws on common law marriage are involved. The problem may be finding an appropriate attorney to handle your mother's case. There are lawyers who specialize in Social Security appeals, but most of them only have experience in handling disability claims.

I can't predict how your mother's case will ultimately turn out. Both Colorado and Kansas do recognize common law marriage, but one of the major requirements for a common law marriage is that both members of the couple agree to be considered as married. If your mother's arrangement with her partner/husband existed when she applied for Social Security benefits and if she then filed for divorced spousal benefits on the record of a previous spouse claiming that she was currently unmarried, I can imagine that will be considered as a strike against her on her current claim for widow's benefits. Your mother may still win her case, but I'm just pointing out what will almost certainly be a sticking point that she'll likely need to explain and overcome.

By the way, if your mother does prevail in her current claim, Social Security will almost certainly require her to repay any divorced spousal benefits that she's been paid. A person can't qualify for divorced spousal benefits on the record of a living ex-spouse while they're currently remarried, even if the remarriage is a legally recognized common law marriage.

Regarding your question about working for changes to the system, I'm not aware of any current legislation that may be pending. Certainly none that would affect your mother's claim, in any event. I will pass along your question to Larry so that he can get back to you if he has any suggestions for you with regard to advocating for changes to the system.

Best, Jerry