THE BLOG

Property and Palimony Law for Unmarried Cohabitating Partners

05/12/2015 05:28 pm ET | Updated May 12, 2016

A governmentally recognized marriage, ceremonial or common law, confers numerous legal rights. However, unmarried cohabitating partners have legal options, some of which are briefly discussed in this educational comment. Always consult experienced legal counsel and other professionals in intimate relationship and property situations.

The 1976 California Supreme Court case of unmarried Lee Marvin and Michelle Marvin, a landmark decision, stated:

The fact that a man and woman live together without marriage, and engage in a sexual relationship, does not in itself invalidate agreements between them relating to their earnings, property, or expenses. Neither is such an agreement invalid merely because the parties may have contemplated the creation or continuation of a nonmarital relationship when they entered into it. Agreements between nonmarital partners fail only to the extent that they rest upon a consideration of meretricious [illicit] sexual services. ... We add that in the absence of an express agreement, the courts may look to a variety of other remedies in order to protect the parties' lawful expectations.

The court then discussed several ways in which an individual who contributed economically to the relationship might be reimbursed. These included an unjust enrichment theory (applied against an individual who unfairly benefited) or "quantum meruit" (paid according to the value received), "or some other tacit understanding between the parties." The California Supreme Court indicated that lower California courts could shape remedies in light of specific factual situations.

The 1976 decision overturned a 1942 decision that found such a contract contrary to "good morals." While this decision is only legally binding in California, my recent search indicates that courts in 39 states have cited Marvin v. Marvin. However, since state law is not uniform, have an experienced legal professional determine the current status of unmarried property agreements in your particular state. A property agreement might be recognized even if unwritten or implied; however, some states have enacted legislation requiring these agreements to be written and signed. What is not so well known about Marvin v. Marvin is that a 1981 California decision reversed an "economic rehabilitation" award in favor of Michelle Marvin, finding that no property or support agreement existed between them and that she had economically benefited as a result of the relationship. The term "palimony" ("alimony" for unmarried "pals") was coined by one of the attorneys in the Marvin case.

Conventional legal wisdom states that the cohabitating unmarried partners need a written and signed cohabitation agreement, prepared in consultation with an attorney for each party. Financial matters such as household expenses, mortgage payments, and the ownership of assets may be addressed as well as medical decision making and inheritance matters, to name a few topics. In the absence of this unromantic approach, be very careful to keep individually owned property, such as deeds, vehicle titles, checking and investment accounts, in separate names. Mixing and mingling assets makes them subject to division. Clarity is the key. What transfers are gifts or loans, for example? It is easy to note "gift" or "loan" in the memo line of a paper check. Vague understandings or claims for funds after the relationship have ended are exceedingly difficult to uphold in court. What are the economic expectations of the partners, and are they provable in court? Of course, children born or adopted in the relationship are always entitled to support and custody, as determined by a court under a best-interest-of-the-child standard. The legal status of frozen eggs, sperm, and embryos in unmarried relationships is an unfolding area of the law that varies state by state.

Advance medical directives are essential to grant the unmarried partner the right to participate in medical decision making for a critically ill partner. It may be impossible to establish a property claim as an heir if an unmarried partner dies without a will. State law varies as to whether a promise to provide lifetime support for an unmarried partner is a legally enforceable agreement against the estate of a deceased partner. In these various situations, joint ownership and survivorship agreements or trust funds created during life may be crucial. Plan in advance for illness, disability, and death.

Approximately half of the states have enacted model legislation promulgated in 1983, the Uniform Premarital Agreement Act. However, individual state legislatures frequently modified the model language. Another attempt at uniform model legislation, the Premarital and Marital Agreements Act, was completed in 2012 but has limited adoption. State law is very uneven when it comes to the property rights of unmarried cohabitating partners.

As baby boomers age, an added dimension of cohabitation involves elder law issues such as Social Security survivor and disability benefits; numerous civilian, government, and military pensions; and veteran's benefits. Medicaid benefits and assisted-living or nursing-home benefits may be involved. In some situations, cohabitation may be financially advantageous over marriage if one is seeking to maximize public assistance or other contractual benefits. Additionally, there appears to be a developing trend in residence-sharing arrangements that will doubtless produce legal issues. The ethics and law of these situations are beyond the scope of this brief comment.

This comment provides a very brief educational overview of a complex legal topic and is not intended to provide legal advice. Always consult an experienced attorney in specific situations.