Hi Larry,
My common-law wife died in December 2019 in Texas where we both resided for more than 20 years.

We we never had a formal marriage arrangement, but had been together for about 15 years. She was a Catholic, and didn't believe in divorce. Her estranged husband, whom she had not seen in 20 years, preceded her in death 4 years before her demise.

She left a will, executed shortly before her death, naming me as her husband and sole heir. Her death certificate lists me as "husband".

I was also the sole beneficiary of her life insurance policy, although I was listed on that as "significant other" since it was taken out prior to her previous husband's demise.

She has two grown children, a father, and a brother in New York state, who will sign affadavits attesting that they considered us married, none of whom contest the will.

We also have leases showing we co-habited for at least 4 years after her husband died. She also helped me with SS and Texas State benefits for my brother, and was listed as my spouse and as my brother's sister-in-law in order to aid me in dealing with his issues when accessing his records.

We never filed a joint tax return.

My understanding is that Texas does not require a formal declaration of common law status to claim a common law marriage, and that SS sides with state law.

I called SS, and a clerk told me otherwise. She died six months ago and I have not formally applied for benefits, so the claim has not been rejected.

Should I engage an SS attorney? Or apply on my own first? If my claim is rejected, and then hire a lawyer, will that diminish my future chances of prevailing?

Regards, Mike

Hi Mike,

I'm sorry for your loss.

You're correct that Social Security follows state law with regard to recognizing common-law marriages. I'm not an expert on the state laws on common-law marriages, but here is some information from Social Security's operations manual that outlines the evidence required to establish the existence of a common-law marriage in Texas: https://secure.ssa.gov/apps10/poms.nsf/lnx/0200305076#c.

Social Security follows a specific procedure when a claim is filed alleging a common-law marriage, and the completion of certain forms are required (https://secure.ssa.gov/apps10/poms.nsf/lnx/0200305065). It sounds like you have a lot of points in your favor, but I don't know whether or not that will be sufficient to establish proof of your marriage to Social Security's satisfaction. I can't advise you with regard to whether or not or when to engage an attorney, but I would think that the advice of a good attorney familiar with the common-law regulations in Texas certainly couldn't hurt, other than the attorney fees.

If you apply for benefits on your own without an attorney, you could still hire an attorney to represent you with handling an appeal if your claim is disallowed. In my experience, doing so does not diminish a person's chances of success with their claim.

Best, Jerry