The concept of family and what constitutes a “couple” in the United States has radically altered over the past half century and the law, perhaps slowly, has adjusted to the new realities confronted. The law has not traditionally looked favorably upon individuals living together outside marriage. However, the law in this area has changed considerably in the past 50 years, since cohabitation has increased dramatically. In 1970, about 530,000 couples reportedly lived together outside marriage. This number increased to 1.6 million in 1980, 2.9 million in 1990, 4.2 million in 1998, and 5.5 million in 2000. The numbers continue to increase and with marriage between couples of the same sex becoming legal in increasing numbers of states, so also the laws applying to cohabitation are become increasingly beneficial for the couple.
In some respects, unmarried cohabitation can be beneficial from a legal standpoint. Unmarried partners may define the terms of their relationship without being bound by marriage laws that can restrict the marriage relationship. See our articles on community property, community property debts and prenuptial agreements. When a relationship ends, unmarried cohabitants need not follow strict procedures to dissolve the living arrangement. See our article on Marital Dissolution. Moreover, unmarried couples can avoid the so-called “marriage tax” in the Internal Revenue Code that at times provides a greater tax rate for unmarried couples than it does for two unmarried individuals (notwithstanding efforts to eliminate this penalty which occur from time to time).
On the other hand, unmarried cohabitants do not enjoy the same rights usually automatically granted to married individuals, particularly with respect to property acquired during a relationship. Marital property laws usually do not apply to unmarried couples, even in long-term relationships. Moreover, laws regarding distribution of property of one spouse to another at death, rights to take care of the property of the other during periods of mental incompetency, even visitation rights at hospitals, do not apply to unmarried couples absent extraordinary efforts creating and filing various documentation that some states allow. Children of unmarried couples have traditionally not been afforded the same rights as children of married couples, though most of these laws have now been revised to avoid unfairness towards offspring.
A fairly recent trend among both heterosexual and homosexual couples who live together is to enter into contracts that provide rights to both parties that are similar to rights enjoyed by married couples. In fact, many family law experts now recommend that unmarried cohabitants enter into such arrangements. Further changes in the laws may also afford greater rights to unmarried partners who live together. However, such arrangements may be invalid in some states, particularly where the contract is based on the sexual relationship of the parties.
This article shall outline the basic issues confronting those cohabitating and recommend some solutions to the legal problems confronted.
Cohabitation versus Marriage:
Almost all family laws and property laws related to marriage simply do not apply to unmarried couples. More specifically, marriage creates a legal status between two individuals that gives rise to certain rights to both parties and to the union generally. Unmarried cohabitants do not enjoy this status and do not enjoy many of the rights afforded to married couples. Thus, if a couple is married for two years, and a spouse dies, the other spouse is most likely entitled to receive property, insurance benefits, death benefits, etc., from the other spouse’s estate. If an unmarried couple lives together for 20 years, and one partner dies, the other is not guaranteed any property or benefits.
Note that there are methods to obtain many of the rights of a married couple without becoming married by becoming Domestic Partners. See our article on California Domestic Partners. Note that the rights, however, do not fully mirror those of married couples-and with the rights come certain obligations to the other person that must be met.
Though many groups support legal reforms providing protection to unmarried cohabitants that would be analogous to laws governing marriage, few such laws exist today and many states resist such a change. Unmarried cohabitants need to know what laws do exist in their state and cities and know what their options are regarding contractual agreements that may provide to themselves rights that are analogous to marital rights.
Laws prohibiting cohabitation and sexual relations outside marriage were very common until about the1970s. Though most of these laws have been repealed or are no longer enforced, they still exist in some state statutes. Eight states still have laws prohibiting cohabitation, which is usually defined as two individuals living together as husband and wife without being legally married. Nine states prohibit “fornication,” which is usually defined as consensual sexual intercourse outside marriage. More than 15 states prohibit sodomy, which includes any “unnatural” sexual activity, such as anal or oral sex. Several of these statutes still apply specifically to homosexual activity.
While most of these criminal laws are clearly antiquated, they are sometimes enforced. In the United States Supreme Court case of Bowers v. Hardwick in 1986, the court upheld the enforcement of a criminal statute prohibiting sodomy between two homosexual men. Such holdings are currently under review in the United States Supreme Court and are likely to be successfully challenged.
Note that criminal statutes proscribing private sexual activity do not violate the federal constitution under Bowers, though some state courts have held that similar statutes are unconstitutional under the relevant state constitutions. Again, legal advice in your particular state is vital to obtain. For those readers in New York, California, Massachusetts, Illinois, and indeed most highly populated states, such laws either do not exist or are not enforced. Other states, especially in the Southern part of the United States, retain many of the laws and enforcement may be quite possible.
A person living as an unmarried cohabitant with another might face some form of discrimination. For example, an employer may expressly forbid employees from living together outside marriage and may terminate the employment of an employee who does cohabit with someone else outside marriage. Such discrimination in employment is not generally forbidden, either under federal law or under the laws of most states. Some state cases have, however, upheld the rights of individuals’ cohabiting outside wedlock.
Ownership of Property-Estate Planning:
Community property laws govern the ownership of property acquired during a marriage and its disposition upon death. The characterization of property acquired by unmarried cohabitants is less clear. Some property acquired by unmarried couples may be owned jointly,(see our article on Joint Tenancy and Tenancy in Common) but it may be difficult to divide such property when the relationship ends and as our articles above describe, such ownership does not have many of the benefits of community property both in terms of ease of control and taxation. Similarly, if one partner has debt problems, a creditor may seek to attach property owned jointly by both partners as if the partner owing the debt solely owned the property. Problems such as these are even more complicated if one partner dies without a will, since the surviving partner has no right to the other partner’s property unless the property is devised to the surviving partner. This danger can be minimized if the couple complies with Domestic Partners laws that exist in some states. Estate planning can be far more complex for a cohabitating couple since the laws which usually apply to married couples under the law (homestead rights, rights to family allowance) may not apply.
Children born out of wedlock have not traditionally enjoyed the same legal protections as children born in wedlock. Such children were historically referred to as “bastards” in a legal context. Though many restrictions on illegitimate children have been repealed in most states, legitimate (or legitimated) children still enjoy some rights that frustrate illegitimate children. This discrepancy is particularly clear with respect to intestate inheritance. In most states, a child born in wedlock does not need to establish paternity to recover from the father. However, a child born out of wedlock generally must establish paternity before he or she can recover from the father. Further, the rights of each parent to participate in the child’s upbringing and the obligation to pay for it must often be established by either agreement or an action to establish paternity. See our article on the topic.
State laws have traditionally prevented unmarried couples from adopting children. Though some states have begun permitting unmarried couples to adopt, these couples still must surmount prejudice and may face other difficulties. Married couples, on the other hand, are permitted to adopt and are usually preferred over unmarried individuals.
One area of real progress has been the requirement imposed upon companies to provide various employment benefits to unmarried couples. Many companies have extremely liberal policies in this area…but all, understandably enough, wish to avoid any two people seeking to obtain the benefits who are not fully a couple and thus most companies have various requirements that are imposed.
Recent changes of policy by insurance companies permit unmarried couples to purchase life insurance policies on the life of the other partner or jointly purchase homeowners’ insurance on a house owned by both partners. However, an unmarried couple will often have more trouble jointly obtaining automobile insurance covering an automobile owned by both partners. Similarly, unmarried couples continue to face serious problems with respect to health insurance family coverage paid or co-paid by an employer. A recent trend among some states, municipalities, and private employers is to extend benefits to registered “domestic partners.”
“Common Law” Marriages:
A minority of states continues to recognize common law, or informal, marriages. California does not, regardless of how long a couple have been cohabitating.
Normally, common law marriage requires more than mere cohabitation between a man and a woman. The couple generally must agree to enter into a martial arrangement, must cohabit with one another, and must hold themselves out as husband and wife to others. Parties that enter into such marriages enjoy the same rights as couples married in a formal ceremony, including rights related to insurance and other benefits, property distribution on dissolution of the marriage, and distribution of property upon the death of one spouse.
Proof that the marriage exists is often the most difficult aspect of a common law marriage, and this issue often arises after the relationship has ended either in death or divorce. For example, the question of whether a common law marriage exists may arise after one of the partners in a relationship dies and the other seeks to prove that the partners were informally married to receive property through the other partner’s estate. Similarly, when a relationship ends, a partner may seek to prove that an informal marriage exists in order to seek property distribution under marital or community property laws. Relatives of the deceased party often become extremely aggressive in seeking to avoid property going to the survivor.
Though a minority of states recognizes common law marriages, all states will recognize the validity of a common law marriage if it is recognized in the state where the parties reside, agreed to be married, and hold themselves out as husband and wife. Common law marriages apply only to partners who are members of the opposite sex as of this writing but this may alter in the future.
The benefit of either registering as domestic partners or entering into some type of written contract as to what occurs if death or parting of the ways occurs is particularly important for those feeling they are in a common law marriage relationship.
While California does not recognize common law marriages, as of this writing the following cities and counties extend benefits to domestic partners: Alameda County, Berkeley, Laguna Beach, Los Angeles, Los Angeles County, Marin County, Oakland, Petaluma, Sacramento, San Diego, San Francisco, San Francisco County, San Mateo County, Santa Cruz, Santa Cruz County, Ventura County, West Hollywood. The following cities and counties offer domestic partner registries: Arcata, Berkeley, Cathedral City, Davis, Laguna Beach, Long Beach, Los Angeles, Los Angeles County, Oakland, Palo Alto, Sacramento, San Francisco, Santa Barbara County, and West Hollywood.
The Solution: Marriage or the Agreement:
Unmarried cohabitants can provide rights to one another that are analogous to rights granted to married couples by entering into a contract or contracts with one another. Written cohabitation agreements usually involve financial and property arrangements. Contracts between unmarried cohabitants are valid if there is any consideration besides sexual relations. It is generally an enforceable contract.
The validity of such agreements was the subject of the well-publicized case of Marvin v. Marvin in the California Supreme Court. In this case, the court held that an express or implied agreement between a couple living together outside wedlock to share income in consideration of companionship could be legally enforceable. The majority of states now recognizes these agreements, though many require that the agreement be in writing. A small number of recent cases have held that contracts between unmarried cohabitants are unenforceable. Be sure to check the current law in your state.
When an agreement expressly includes consideration of sexual services provided by one of the parties, a court is more likely to find the contract unenforceable. For example, if one partner agrees to share his or her income in return for the other partner’s love and companionship, a court may find that the contract implicates meretricious sexual activity and refuse to enforce the contract. Proving an oral agreement or an implied contract between unmarried cohabitants is also difficult, and several courts have refused to recognize such an agreement due to lack of proof. It is always better to have a fully written executed agreement with independent counsel advising each party if possible.
Nothing prevents unmarried cohabitants from leaving estate property to the other partner upon death in a will.
Alternatively, intestate succession laws may not provide that any of the property will pass from one cohabitant to another, since intestacy laws are limited to marital and other family relationships. A fellow cohabitant might be able to get a share of the intestate’s estate by arguing that the parties entered into a financial or property-sharing arrangement, though such claims are often difficult to prove. A will or trust is generally the best method to ensure that a partner’s property is given to the person he or she designates.
Another complicated situation can arise if one cohabitant is disabled and requires a guardian. To ensure that one partner is named guardian or is otherwise able to make decisions for the other partner, the parties can prepare a document providing durable power of attorney to the other partner. Under this arrangement, the person granted durable power of attorney could make healthcare decisions for the disabled person. Durable powers of attorney can also be created for financial decisions. Similarly, a party can draft a living will (also called a healthcare directive) that dictates the wishes of the party regarding life-prolonging treatments and other medical care.
It may be noted that once one creates the appropriate documents via contract, durable powers of attorney and estate planning, one can duplicate much but not all of the rights granted to married couples, but failure to do so leave the couple relatively unprotected.
One client put it well when confronted with the various steps necessary to give protection to his girl friend-“It would be as easy to get married as to do all this stuff.” He seemed quite exasperated.
Actually, even married couples should create many of the same documents to ensure that their interests are protected, including estate planning, trusts, durable powers of attorney, and often prenuptial agreements. All these documents will make the difference between a smooth handling of potential problems and a period of instability, turmoil and possible conflict. Some additional work now will save months and even years of difficulty.
One couple who were actually planning marriage confronted disaster when the man was incapacitated in a motorcycle accident and in a coma for three weeks. During that time his family, who had never liked her, refused her admission to the hospital, insisted upon making all medical decisions, and even told her she should plan on moving out of their home which was still in his name. When he did eventually recover, all these efforts were countered…and they married six months later…but the relationship between the in laws and the bride was forever shattered. Indeed, she has still not even spoken to them and this was well over a decade ago.
While that example is extreme, it is important to realize that if you do not take steps to protect yourself as a couple, no one else will. Like insurance, it only matters when it is needed and when it is needed it is usually desperately needed.
The client who complained about the work necessary to obtain the protection made that comment over a dinner in which his mother was present. Her answer struck the writer as precisely on point. “Grow up. Mom and Dad can’t protect you in this. Only you can. Get married or do some contract writing.”