My ex husband and I began to live together in 1963 in Cleveland Ohio, we had two children born while we lived in Cleveland and later had a third child in WV. We later got married in Maryland and divorced 7 years later. I have never remarried but he did and he just died this year and he and his second wife had been separated for nearly 7 years. I am wondering if I am eligible for his benefits under the first wives rule? When I applied for my own SS in 1988, I also applied for half of his retirement and at the time I sent birth certificates, everything SS wanted, They said I was already drawing more than half of his at the time. Now I'm told I'm not eligible for his widow benefits due to 10 year rule and common law doesn't apply.

Hi,

I don't know what you're referring to by a 'first wives rule'. Whether or not your ex-husband's second wife can collect benefits from his record has no bearing on your potential eligibility for survivor benefits. Multiple ex-spouses and/or a widow(er) can all potentially simultaneously collect survivor benefits on the record of a deceased worker. And, the entitlement of another ex-spouse or widow(er) would have no effect on the benefit rate that each survivor could collect. However, your marriage must have lasted for at least 10 years in order for you to potentially be able to qualify for surviving divorced spousal benefits (https://www.ssa.gov/OP_Home/handbook/handbook.04/handbook-0403.html).

Common law marriage was recognized in Ohio prior to 10/10/1991, so if you think that you and your ex-husband established a common law marriage that lasted for a minimum of 10 years then you may want to consider applying for survivor benefits. But, you would then need to present evidence that proves to Social Security that a valid common law marriage was established (https://secure.ssa.gov/apps10/poms.nsf/lnx/0200305065). That would likely consist of documents that show you lived together and represented yourselves as husband and wife. Ohio law also requires that both members of a couple contract to take each other as man and wife in order for a common law marriage to be established, so Social Security would likely require written statements to that effect from you and ideally a relative(s) of the deceased in order to establish that you and your ex did in fact contract to establish a valid common law marriage (https://secure.ssa.gov/apps10/poms.nsf/lnx/0200305075).

Best, Jerry