We're living together, but we're not married...

What's the big difference?

We’re living together, but we’re not married… What’s the big difference?

If you and your partner have decided to live together and share your assets, but you aren’t married, then you should be made aware of the legal differences between a married and unmarried couple and what steps you should take to protect both of you.

Heart and love

Disclaimer: This is not a post about the morality of unmarried couples living together. In this blog, we are strictly discussing what legal concerns unmarried couples face when they live together.

 

Apartment Living

Can we decide ahead of time who gets to stay in the apartment if we break up?

Yes, you could draft a rental agreement that would allow you to decide who stays in the apartment if you end your relationship. If not, you’d both be on the lease, and you’d both have equal rights to stay in the apartment. To create an agreement like this, you’d need to meet with a real estate attorney to draft these documents, because a landlord wouldn’t already have an agreement like this available to you.

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Can one or both of us leave our tenancy agreement if we break up?

Unless you decided ahead of time in your landlord-tenant agreement, you’d both still be on the lease. You’ll both have equal right to live there, and you’ll both be equally responsible to pay rent.

Purchasing Real Estate

Can my partner and I purchase real estate together?

You can purchase property jointly even if you’re not married. In order for both people to purchase real estate, both you and your partner must have your names on the deed.

Giving house keys

What happens to the property if I or my partner dies?

Whether or not the surviving party inherits both halves of the property is dependent on whether you decided on a joint tenancy with right of survivorship or tenancy in common.

With tenancy in common, the deceased person’s share of the property would be inherited by their next of kin. Joint tenancy with right of survivorship leaves the surviving partner with full ownership of the property.

Should one person purchase real estate and let their partner live there?

You can choose to live together if one person already owns their own home, but keep in mind that the only way you can have a claim to a property is if your name is on the deed. Even if both people are helping to pay the mortgage, only the person(s) with their name(s) on the deed have a legal claim to the property.

Estate Planning

Last will and testament form

If I die without preemptive estate planning, what happens to my estate?

If someone were to pass away without performing any preemptive estate planning, their estate would be inherited by their next of kin by default.

How can I make sure that my partner inherits my estate?

If you want to ensure that your partner inherits some or all of your estate, you have to meet with an attorney to draft estate planning documents including a Last Will and Testament. By going through this process, you can personalize your wishes beforehand.

For example, if you wanted to split your estate four ways (half to your parents, a quarter to your sister, and a quarter to your partner) you could designate this in your will and ensure that your estate is distributed the way you’d prefer.

Access to Medical Information and the Right to Make Medical Decisions

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Why do I need to be concerned about this?

Without the appropriate documentation, an unmarried couple doesn’t have any legal right to each other’s medical information. They also have no right to make medical decisions for their partner in the event that their partner is incapable of making their own decision.

If you trust that your partner is the best person to have access to your medical information and the best person to make medical decisions for you, then you should make sure that they have these authorizations.

How do I designate my partner as someone who can know my medical information / make medical decisions for me?

You have to meet with an estate planning attorney to determine what legal documentation you can create, depending on the state you live in, that will give your partner these authorizations.

Common Law Marriages and Legally Binding Relationships

What is a common law marriage?

A common law marriage is a legally binding agreement by a couple who has been living together for a period of time who meet certain criteria, defined by the state they live in, to consider themselves a married couple. This legal definition provides the couple with the same privileges any other married couple has.

Gavel and wedding rings

How does this legally come to fruition?

If you meet your state’s criteria, you must present proof to your state in order to enter a common law marriage. It’s a common misconception that you will automatically enter a common law marriage after a certain period of time without first applying for one.

What are the pros and cons of a common law marriage?

The pros and cons are hand-in-hand, and they’re dependent upon how serious you want your relationship to be taken. Once you enter a common law marriage, you have the same rights as any other married couple, including an official divorce.

If you enter a common law marriage, you should want the relationship to be taken as seriously as any other marriage. For example, if you don’t want to go through the process of a divorce should the relationship end, then you shouldn’t enter a common law marriage agreement. On the other hand, benefits of a common law marriage, such as certain health care benefits, can be excellent reasons to enter a common law marriage.

Do all states have common law marriages?

This is another common misconception about common law marriages. No, not all states have common law marriages. In fact, the vast majority of states don’t have common law marriages.

As of writing this post, you can get a common law marriage (or something similar) in Colorado, District of Columbia, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Oklahoma, Rhode Island, South Carolina, Texas, and Utah. (The states in blue have links attached to provide you with further information about common law marriage in those states.)

What can I do if my state doesn’t have common law marriages?

marriage guidance

Since most states don’t recognize common law marriages, the chances are that you’ll have to seek out an alternative to these agreements.

If you can possess a common law marriage in another state, then it will be recognized in all states whether or not they also have common law marriage legislation. However, you would have to be a resident of the state providing you with your common law marriage at the time that you get it.

If you can’t get a common law marriage, the next best thing to do would be to meet with an attorney to draft the necessary documents to create a legally binding relationship. We’ve already discussed a few of these documents.

Other Considerations

Who gets the pet(s) if we break up?

There are a few things that could happen if you and your partner end the relationship, but you bought pets together. You could create an agreement ahead of time as to what would happen to the pets, or you could try to come to an agreement after the break-up.

Owner walking with Golden Retriever dog together in park

Whether you made the agreement ahead of time or after you’ve decided to break up, the agreements would look a lot like child custody agreements. You could decide to split custody of the pet, give one person full custody of the pet, or give one person full custody while the other person has visitation rights.

Should we document what belongs to each person?

Large stack of files, paperwork. Close-up. Desk, office. Nobody.

There are certain things that you really can’t plan for, and wouldn’t be worth trying to plan for. Trying to determine who bought what (or who paid more for the placemats) in case your relationship ends takes too much time and effort. Additionally, the effort of planning this extensively for a potential break-up probably isn’t very healthy for a relationship.

This isn’t to say that if you were to break up that there’s no way of making sure your assets are distributed equally, but extensively and tirelessly documenting each purchase ahead of time probably isn’t the way to do it.

 

We hope that you’re feeling more confident about how to live together as an unmarried couple, while still protecting the relationship and each other’s interests. It’s important that you evaluate how close you’d like the relationship to resemble that of a marriage, and based on that evaluation you can set up whatever protections will be necessary for that agreement.

If you’re looking to draft some of the necessary legal documentation we’ve mentioned in this article, or you’d like to discuss with an attorney what options are best for your relationship, please feel free to call

(860) 423-9231 weekdays between 9 am – 5 pm EST.

You can also visit www.PrueLawGroup.com for more information about The Prue Law Group, P.C. and our services.

 

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