The Legal Risks of Couples Living Together

There is nothing sweeter than love, and for many couples in love today, being committed to each other means living together without that piece of paper that says you are married.

Regardless of one’s personal views about marriage, there are still valid reasons to marry, and not all of them are evident at the time couples decide to move in together.

While a lot of the reasons to be married concern money, that’s only part of the story.

Subscribe to Kiplinger’s Personal Finance

Be a smarter, better informed investor.

Save up to 74%

Sign up for Kiplinger’s Free E-Newsletters

Profit and prosper with the best of Kiplinger’s expert advice on investing, taxes, retirement, personal finance and more - straight to your e-mail.

Profit and prosper with the best of Kiplinger’s expert advice - straight to your e-mail.

Sign up

That was the question from 27-year-old architect “Marc,” who wrote, “I have been living with my high school sweetheart for almost eight years. My business has grown tremendously, but ‘Liz’ is just making ends meet, working for a non-profit, and has huge college loans that she is paying down.

“We never thought about the financial consequences of our relationship, so I hope you could tell me what most family law attorneys would recommend to people in our situation.

“What are the possible negative consequences of us not getting married?”

View Marriage as a Business Relationship

I ran Marc’s question by several family law and estate planning lawyers, all of whom urge couples in this situation to realistically look at marriage as a business relationship.

“If you are going to invest your time and effort in someone at a young age, consider it as a business. In many states, without being married, if you walk away you will leave with little to no spousal support, for example, no right to inherit unless you are named in a will, no right to retirement benefits, Social Security, to sue for wrongful death of your partner, and so on,” Hanford, Calif., family law attorney Jeffrey Levinson points out.

I asked him, “So, what if they do get married, and then two years later divorce? Is Liz able to share in the value of Marc’s business?”

“In many jurisdictions, her right to the value of his business would be limited by their two years of marriage. She would have invested years of her life and walk away with potentially little, if anything.

“There is no more clear way I can put it: This is a business decision. Look at it as a business relationship. What’s in it for you? What’s in it for you after eight years of cohabitation? If you are investing that time and energy, get married!”

Another important question: If they married, would her pre-marital debts become his, potentially jeopardizing his business?

Liability for each other's debts depends on where you live. In the few "community property” states, most debts incurred by one spouse during the marriage are owed by both spouses. However, in states that follow "common law" property rules, debts incurred by one spouse are usually that spouse's debts alone, unless the debt was for a family necessity, such as food or shelter for the family or tuition for the kids. That said, some states have slight differences in how they treat joint and separate debts.

However, it is important to be aware that joint bank accounts can be seized to pay the debts of either party. So, if, in my reader’s situation, Liz comes into the marriage with huge, pre-marital debt, they may wish to consider maintaining completely separate bank accounts, totally separate financial lives and entering into a pre-marital contract, which sets out the separate status of their financial lives.

Even with a Domestic Partnership Agreement, You Still Lose!

Some states have passed Civil Union and Domestic Partnership laws that give limited state rights to both same-sex and opposite-sex couples who live together but wish to remain unmarried. They still leave out a great deal of legal protection at the federal level.

Additionally, only a handful of states recognize these relationships, so that if a couple establishes one in, say, California, but moves to a state that does not, such as Nebraska or Kentucky, they may have zero legal protection.

Bakersfield estate planning attorney Patrick Jennison points out that cohabitation can result in:

1. Denial of the unlimited marital deduction for federal estate tax purposes, which allows property to pass from one to the other on death tax-free for married couples.
2. Not being considered as a legal heir.
3. In California and other states there is no such thing as common law marriage. Ten or 50 years gives no unique legal status.
4. As to disclosure issues — and confidentiality — an unmarried partner would have no priority over anyone else. It becomes much more difficult for the non-spousal partner to get information because of HIPPA.
5. Receiving Social Security benefits requires being married. Living together, for no matter how long, does not provide those protections.
6. If you love each other, have an estate plan in place. Do not think that “palimony” will save you from financial disaster. Without proving an agreement to share ownership or support the other should you separate, you are on your own.

Cohabitation Without Being Married Can Be a Good Choice for Older Couples

While there are several good reasons why older Americans might want to marry (See Financially, Marriage Makes a Lot of Sense for Retirees), Hanford divorce attorney Carla Khal wants seniors to understand that there may be very good reasons to keep living together and not marry, including:

1. To not jeopardize your rights to Social Security from a prior marriage.
2. To protect your children’s rights to an inheritance from a prior marriage.
3. If you receive a pension, you may not want a situation where that person has rights to it. To do so would put your children second in line.

Today, more Americans are living together without being married than at any other time in our history. That being said, there is an old saying among family law attorneys: “In love, you plan for the best. In business, you plan for the worst.”