Unmarried couples who are living together have the option of creating a number of legal documents (often called “cohabitation agreements”) that can help protect their rights as a couple, while at the same time safeguarding their individual interests and assets. Since unmarried couples who live together may one day split up, especially outside of the legal bonds and social institution of marriage, it makes sense to plan ahead in order to avoid future conflicts. This sub-section includes information about when you might need a cohabitation agreement, what it can do for you, the different ways they can be drafted, and related matters such as wills and durable power of attorney.
Legality of Cohabitation Agreements
Unmarried couples have not always had the option to enter into contracts to provide some of the protections of marriage without actually getting married. After some litigation on the matter it has become fairly well established that there are three legal bases by which nonmarital agreements can be established.
Unmarried couples can enter into both written and oral contracts covering rights normally associated with marriage, such as the rights to property acquired during the relationship.
Unmarried couples can create "implied" nonmarital agreements even without discussion or any writing. In appropriate situations the court evaluates the couple's actions to determine whether an agreement was implied.
If there is no implied agreement the court can determine that the couple intended to "deal fairly with one another," and thereby grant parties rights and obligations consistent with equity and fairness.
Subject Matter of Cohabitation Agreements
The legal requirements for a valid cohabitation contract are much like the requirements for any valid contract. A valid agreement will be comprehensive to avoid dispute relating to an aspect of the couple's life together unaddressed by the contract. Some of the aspects of the couple's life together a cohabitation agreement might cover include:
The distribution of property in case of death or breakup.
Financial support during or after the relationship.
The division of the principal residence upon death or breakup.
The creation of a joint tenancy with right so survivorship, or adding a partner's name to a deed.
Support, custody, or visitation rights for minor children, though this is easily rejected or modified by a court, which can decide differently based upon the best interests of the child.
Determination of health care insurance responsibility.
The creation of advanced health care directives or health power of attorneys to allow partners to make decisions for each other in case of incapacity.
Wills and Durable Powers of Attorney
Two documents that may be used in place of, or in addition to, a cohabitation agreement are wills and durable powers of attorney. These documents, like a cohabitation agreement, can help ensure that the individual's wishes are carried out in the event that they die or become incapacitated.
Wills direct how a person's estate will be distributed after they die. This is important because an unmarried partner is usually not entitled to anything at all under the laws of intestate succession that control how property is inherited when someone dies without a will.
Durable powers of attorney allow someone to act and make decisions on your behalf if you become legally incompetent to manage your own affairs through illness or accident. Unmarried partners typically have no right to decide important health or financial matters in such situations without a power of attorney.
