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Co-habitating Seniors Need to Solidify Rights
Jan L. Warner & Jan Collins

Question: I am 67 and my male friend is 72. Both of us lost our spouses years ago, met at a support group in 1999, and moved in together in 2001. Since then, we both have been pressured by our respective children to either get a premarital agreement and marry, or live in our separate homes and date. Otherwise, they say, we will have a common law marriage.

The problem is that we both like things the way they are and don’t intend to get married. In fact, we opened a joint bank account to pay household expenses but our assets remain separate – meaning that our respective kids just may get something when we die. We think our kids are “old fuddy duddies” -- or are we missing something?

Answer: The nature of your relationship is important not only if there is a separation, but also when it comes to making health decisions for an incapacitated partner or sorting through issues of entitlement at death or disability. In these complex and litigious times, we believe that it is better for you to define your relationship yourselves rather than have it defined for you – and your families -- by the courts.

That said, when two individuals live together without the benefit of a marriage ceremony, share assets and income, acquire assets, perform services for each other, and then separate, die, or become incapacitated, their relationship – or lack thereof – will be governed by a set of mostly unwritten rules. Rather than being regulated by a body of legislation and judicial decisions, the nature of the relationship may well be established by a judge based upon what others thought you intended.

First of all, whether or not you are considered to be married under common law depends on where you live, but will probably not come to light until after one of you has become incapacitated or dies. Today, 13 states -- Alabama, Colorado, Georgia, Iowa, Kansas, Montana, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, Idaho (if prior to January 1996), and Ohio (if prior to October 1991), plus the District of Columbia -- recognize common law marriage.

To prove a common law marriage, there must be intent to be husband and wife -- which you and your friend don’t appear to have -- and a mutual and open “holding yourselves out” as married and having a community reputation of being husband and wife. Proof of intent to be married may include using the same name, statements made to third persons, letters and cards, and the like. Once a common law marriage is proved, the relationship is governed by the same laws as those governing folks who have ceremonial marriages – including inheritance, responsibility for each other’s medical expenses, and the like. Social Security recognizes common law marriages.

In states that don’t recognize common law marriage or if common law marriage can’t be proven, unmarried cohabitants – or their representatives -- may avail themselves of various equitable remedies to extract money based upon contributions made to the relationship. With seniors, these claims are, for the most part, made after one individual has become incapacitated or has died and is not available to tell his or her side of the story.

These equitable remedies may include 1) resulting trusts that prevent unjust enrichment of one party at the expense of the other; 2) constructive trusts where one person is deemed to be holding assets for the other; 3) oral, written, or implied contracts; and 4) legal actions for reimbursement of the value of services rendered. And to further muddy the waters, a far-reaching court decision in Washington State has construed the Uniform Marriage and Divorce Act to allow the equitable distribution of property between unmarried cohabitants when "...a man and a woman … have lived together and established a relationship which is tantamount to a marital family except for a legal marriage." The result: income and property acquired during a cohabiting relationship can be characterized just like income and property acquired during marriage, and all property acquired during the cohabitation relationship may be presumed to be owned by both parties.

These can be expensive and agonizing proceedings for families who find themselves scrambling to mount a defense when the best witness – you – are unable to participate in your own defense.

For that reason, we believe that if marriage is not intended, cohabitants should sign written co-habitation agreements that can be proof there was no common law marriage. These agreements are now more prevalent among seniors who do not want to assume financial responsibility for others’ medical care and other types of care, and who do not want courts to judge their relationship after the fact. Coupled with appropriate durable powers of attorney and health care directives, we believe that co-habitation agreements are the weapons of choice if you do not want to risk your family spending your hard-earned money on lawyers when you are no longer with them.



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