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Lane
Lane, JD, CFP, MBA, CRPS
Category: Finance
Satisfied Customers: 10157
Experience:  Law Degree, specialization in Tax Law and Corporate Law, CFP and MBA, Providing Financial & Tax advice since 1986
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My wife and I have being married than 30 years now. We have

Customer Question

My wife and I have being married for more than 30 years now. We have been lived in the U.S. for 21 years now and we have being filed joint tax returns as married. We finished our U.S. naturalization and become U.S. citizens ~5 years ago. We got our original marriage certificate in China before. Now we need to get our Chinese marriage certificate apostilled in China, that will take ~2 months. My company HR person told me that, a simple and fast way to get our marriage certificate apostilled is, to walk to a local county in Texas to get married, and to get a U.S. issued marriage certificate, and then we can get it apostiled in the U.S. quickly.
My question is: If I do this here in Texas, will I have any legal issue or problems?
For instance, if I die tomorrow, can my wife get the her social security benefits (According to IRS, I have paid enough social security tax for more than 20 years now, and my wife can get 50% of my social security pay when she is old, as long as she has married me for more than 10 years).
what is your advise? Thanks.
Submitted: 6 months ago.
Category: Finance
Expert:  Expert_James replied 6 months ago.

Hello! Thank you for using Just Answer. I am James, and I will be assisting you. As we work through your questions, think about this as a conversation. I will ask you questions until I have the information I need, and then I will provide you with an answer. While it might take some time to get through this, we will get through it together.

Customer: replied 6 months ago.
Hello
Customer: replied 6 months ago.
Are you reading my questions?
Expert:  Expert_James replied 6 months ago.

Yes, did you see my introduction? Or are you having issues?

Expert:  Expert_James replied 6 months ago.

Please allow me some time to review and consider your questions. Thank you for your continued patience.

Customer: replied 6 months ago.
I didn't see your introduction. Can you help me to answer my questions?
Expert:  Expert_James replied 6 months ago.

OK, let me introduce myself again. I am James, and I will be assisting you. As we work through your questions, think about this as a conversation. I will ask you questions until I have the information I need, and then I will provide you with an answer. While it might take some time to get through this, we will get through it together.

Please allow me some time to review and consider your questions. Thank you for your continued patience.

Customer: replied 6 months ago.
Your written answer will be fine.
Expert:  Expert_James replied 6 months ago.

I understand. Please be patient as I consider your questions and prepare a response.

Expert:  Expert_James replied 6 months ago.

OK, this is a social security and family law question, not an immigration question. Therefore I have to ask that the category be changed to one of those. Please do not respond, as this will make it take longer to transfer categories.

Expert:  originallawyer replied 6 months ago.

Hello:

You should not encounter any issues doing this. If the length of your marriage is ever questioned, you have your Chinese documents to prove the length of your marriage. Your wife is entitled to your social security now, because she is married to you now, and if you were to get "married" here in Texas tomorrow, she'd still be entitled to your social security.

Expert:  Lane replied 6 months ago.

Hi,

...

I am a different expert with a different answer

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You question," if I die tomorrow, can my wife get the her social security benefits," was not addressed completely

.....

Social Security pays several different kinds of benefits. THe question you've asked pertains to SURVIVORS benefits.

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First, although getting the Marriage certificate apostilled may be necessary (a policy requirement for, say, an HR department providing spousal coverage for a worker - or other reasons) this is NOT necessary for Social Security purposes.

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Under the Social Security POMS (internal operating manual) the "GN 00305.020 Preferred Proof of Ceremonial Marriage" states that for foreign certificates a foreign document based on church or civil records issued pursuant to the foreign law which shows the claimant and the worker as husband and wife, is sufficient.

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NOTE: (Preferred proof of marriage does not include a souvenir certificate (SC), also known as a keepsake, ornate, ceremonial, complimentary, goodwill, memento, or heirloom certificate.)

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The reason that this is important is the following:

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For a Social Security survivor's benefit, a widow or widower must have been married to the deceased worker at the time of his or her death and for at least nine months immediately prior to the day in which the worker died, unless one of the exceptions is met.

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Some of the exceptions include the worker's death was accidental or the worker's death occurred in the line of duty as an actively serving member of a uniformed service.

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Although, your marriage certificate - from China - will suffice for a claim of survivor benefits, it should be noted the a new marriage, and then passing befor 9 months have expired could VERY easily (in my experience likely would) cause administrative nightmares on the VERY incompetent front lines at Social Security.

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Things have become so bad at social security, in terms of the information provided by the personnel at the local field offices, that my firm always sends along copies of the applicable POMS with our clients when they go to file claims.

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I realize that (1) this is a small window of time and low probability and (2) that upon what would likely be a long and arduous process of reconsiderations, reviews, and appeals she would likely be able to get the survivors benefit ... Already having filed as married filing jointly will help there...

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But given the specificity of your question, "... if I die tomorrow...," this needs to be pointed out.

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Please let me know if you have any questions at all

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Lane

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...

I hold a law degree (JD, Juris Doctorate), with concentration in Tax Law, Estate law & Corporate law, an MBA, with specialization in finance & tax, as well as CFP® and CRPS designations. - I’ve been providing financial, Social Security & Medicare, estate, corporate & tax advice, to clients on three continents, since 1986.

Expert:  Lane replied 6 months ago.

OK, still don't see you coming back in for any follow-up questions. Hopefully, now, you can make an informed decision regarding that risk around the 9 month rule (and again the risk may only be that your wife would have to jump through some administrative hoops to prove that you were indeed married before the "re-marriage.")

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Now you can make the decision, understanding the potential trade-offs.

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Please let me know if you have any questions at all.

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If this HAS helped, and you DON’T have other questions … I'd appreciate a positive rating (using the faces or stars on your screen, and then clicking “submit")

I know it takes an extra step, but JustAnswer won’t credit us for the work until you rate.

...

Thank you!

Lane

I hold a law degree (JD, Juris Doctorate), with concentration in Tax Law, Estate law & Corporate law, an MBA, with specialization in finance & tax, as well as CFP® and CRPS designations. - I’ve been providing financial, Social Security/Medicare, estate, corporate, both for-profit and non-profit, and tax advice on three continents since 1986.

Expert:  Lane replied 6 months ago.

Hi,

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I’m just checking back in to see how things are going.

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Did my answer help?

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Let me know…

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Thanks

Lane

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