By Jade Yeban, J.D. | Legally reviewed by Aisha Success, Esq. | Last reviewed May 16, 2023
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Living with your partner without being married to them can pose legal challenges. Married couples have certain legal rights and protections that affect their property rights if they break up. But cohabiting couples do not have the same protections.
If you are in a cohabiting relationship (or a domestic partnership), you will want to know about property laws that may affect you and your cohabiting partner if you break up.
This article provides a brief overview of unmarried couples and what they should consider about their property.
Many couples live together without being married. Some will accumulate a significant amount of property while they are together. This may pose unique legal challenges if they decide to break up.
Some states recognize common law marriage. This means couples who live together and present themselves as married may be considered legally married. Not all states recognize common-law marriage; for example, New York does not.
Marital property refers to assets and debts that the couple acquires during marriage. In general, most property acquired during a marriage is considered marital property. This includes real estate, cars, bank accounts, personal property, and investments. Marital property can be divided in the event of a divorce. Each spouse will be entitled to some property based on various factors.
Property between cohabiting couples is treated differently. Cohabiting couples do not have the same marital property rights as married couples. Property acquired during the cohabiting relationship is considered separate property of each partner, even if purchased together. This means that if the couple were to break up, each partner would only be entitled to the property in their own name.
Many cohabiting couples choose to rent. Some decide to buy real estate together. Cohabiting couples may choose to jointly own property under a joint tenancy with rights of survivorship agreement, which means that both partners have equal ownership rights to the property (in some states, this type of ownership is only for married couples). If one partner (or joint tenant) dies, their share of the property automatically goes to the surviving partner. This is regardless of what their will may say.
While joint tenancy can be a convenient way for cohabiting couples to hold property together, it can come with risks. For example, if one partner decides to sell their share of the property without the other's consent, it can create unexpected problems. Additionally, dividing the property can be complicated and contentious if the couple's relationship ends.
Unmarried couples might also choose to hold property as tenants in common. This means each partner has a separate, identifiable share of the property. Unlike joint tenancy, if one partner died, their share of the property would go to their heirs or as designated in their will. It would not automatically go to the surviving partner.
Regardless of the unmarried couple's arrangement, they should create an explicit agreement about how they will divide property if they break up. They should also cover how the expenses and maintenance of the property will be handled.
It depends. In general, if the house is in one partner's name and they can prove they are the sole owner of the property, they may be able to keep the house. But, if the couple purchased the property together, or if the non-owning partner can prove they made significant contributions to the purchase or upkeep of the property, they may be entitled to some of the equity in the home.
Ultimately, it will depend on the specific facts of the case and the state laws where the couple resides. Cohabiting couples must agree on how they will divide property during a breakup.
Some states recognize common-law marriage. This means that if a couple lives together and presents themselves as married, they may be legally married without having had a formal marriage ceremony. But, not all states recognize common-law marriage. You must check your state laws.
There may be issues in estate planning for unmarried couples. If you're not married, it is crucial to have a will in place to ensure your property goes to the person you want it to go to in the event of your death. If you don't have a will, your property will go to your surviving family members, regardless of your relationship with them.
Additionally, if you want your partner to make health care decisions for you if you become incapacitated, you may need to create a health care power of attorney. If you provide financial support for your partner after you die, you can name them as a life insurance policy beneficiary. But, it's important to note that the surviving partner may have to pay taxes on the proceeds.
Surviving partners in unmarried relationships may also face challenges regarding property rights. For example, if one partner dies without a will, the surviving partner may not automatically inherit their property. Similarly, if a partner dies and their assets are held in a joint account, the surviving partner may not automatically have access to those funds.
Financial support may also be necessary for unmarried couples to consider. In some states, if you live together for a certain amount of time and act as though you're married, there may be an implied agreement (or implied contract) to support each other financially. But this can be a challenge to prove in court. It's essential to have a written agreement in place. "Palimony," or financial support, may also be available to unmarried partners in some states.
Child custody and child support payments can also be challenging for unmarried couples. Generally, the laws surrounding these issues will be like those for married couples. But unmarried couples may need to take extra steps to establish their rights, such as creating a parenting agreement.
Domestic partners may access some of the same benefits as married couples, like health insurance. However, it's essential to check with your employer or insurance provider to understand what benefits are available to you.
When cohabiting with a partner, taking steps to protect yourself and your assets is essential. One way to do this is to create a cohabitation agreement with your partner. This can outline how you will divide property during a breakup. If you plan to get married, you could also do this through a prenuptial agreement. These written contracts can contain who gets the house, how to divide bank accounts and investments, and whether either partner will receive palimony.
Unmarried cohabitants do not have the same legal rights and protections as married couples. Seeking legal advice can help ensure that the agreement is legally enforceable and protects the rights of both partners.
Couples may choose to live together without getting married for many reasons. But, this may give rise to legal challenges for cohabiting couples that decide to break up.
For help with a cohabitation agreement, talk to a skilled family law lawyer. They will give you valuable legal advice to help guide your decisions. They also will be knowledgeable about your state laws and apply them to your situation. They will advise you on your legal rights and help you put protections in place if things go sour.
Talk to an experienced family law attorney today.
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