Jan L. Warner & Jan Collins
Question (by email): I am 67 and my male friend is 69. Both of us lost our spouses to cancer and met at a support group four years ago. We got along and began living together two years ago. We have been pressured by our children to get married, but we don't know what we want to do or what our rights are if we continue to live together. Someone told us that we could be declared to be common law married. We do have joint bank accounts to handle household expenses, but our other assets remain separate. Can you direct us to a resource so we can sort out our options? What happens if we separate? Die?
Answer: You have asked some very complex questions that, unfortunately can't be fully discussed here; however, here's our effort to give you the basics. When two individuals live together without the benefit of marriage, share assets and income, acquire assets, and then separate, a whole new set of rules comes into play: Rather than being subject to the statutes, cases, and family courts of their state of residence, the relationship is governed agreements, implied agreements, and intent. Just what your relationship may be and the remedies available upon separation first depends on where you live.
Today, 14 states recognize common law marriage which may be found when a man and woman intend to be husband and wife and there is a mutual, open display of a marriage-like relationship. Generally speaking, there must be some type of mutual exchange of promises for the marital relationship to be created. Intent is usually proved by evidence of a man and a woman holding themselves out as husband and wife, by living together, and by having a reputation in the community of being husband and wife. Each situation is based on its own facts. Upon proving a common law marriage, the relationship is governed by the same laws as those governing folks who have ceremonial marriages. Social Security recognizes common law marriages.
If you live in a state which does not recognize common law marriage, upon separation, unmarried cohabitants may be entitled to a number of remedies, again depending on where you live:
1. A resulting trust is a remedy which prevents unjust enrichment of one person at the expense of the other. This claim is generally not based on an agreement, but on the equitable principle that a person who receives a benefit must make give it back if retaining the benefit would be unjust.
2. A constructive trust can be impressed by a court if it is proved that one person is holding the money or property of another which was acquired unjustly or unlawfully.
3. As we have written before, The Courts of Washington State have ruled that the Uniform Marriage and Divorce Act allows the court to equitably divide the property of unmarried cohabitants if "...a man and a woman who have lived together and established a relationship which is tantamount to a marital family except for a legal marriage." Under this rationale, income and property acquired during a non-marital relationship can be characterized just like income and property acquired during marriage.
4. If the there is a signed written co-habitation agreement -- which are becoming more and more prevalent today, the court can enforce the agreement based on contract law and the terms of the agreement. Co-habitation agreements are proof there was no common law marriage, and are now being used more by elderly persons who do not want to assume financial responsibility for the others medical and other care.
5. In some states, the courts may recognize and enforce express oral contracts for support - provided that the agreement is not based on illegal or immoral consideration - like sexual relations.
6. And lastly, some states have recognized "implied" contracts so long as there is a "meeting of the minds" about the essential terms.
Since common law marriage is often raised after the death of one of the cohabitants, if you do not intend to be married, it is best to sign a cohabitation agreement that specifically says that you do not intend to be married. And, regardless of your intentions, you should sign durable health care powers of attorney and durable financial powers of attorney to try to head off future problems, not only for you, but also your family.
Since all of these areas are so complex and vary from state to state, be sure to contact a lawyer in your state of residence who can review all of your facts and give you his or her opinions.