Take-Away: Surveys and statistics show that more and more Americans cohabit without marriage. Federal and state law reward couples who marry and protect the rights and interests of those who choose to marry. However, there is no comparable protection to the partner in a committed cohabitation relationship, who may have few remedies once the cohabitation arrangement ends while both are alive, or on the death of their partner. In the absence of laws that afford any protection, the partners to cohabitation relationship should seriously consider entering into a binding cohabitation agreement do document their understanding and memorialize their promises to each other.

Background: While there is a sense that more couples are eschewing a formal marriage and opting to cohabit with one another in a committed relationship, recent survey results reveal just how strong that societal trend is becoming. Of the total number of adults in the US able to marry, 7% were cohabitating in 2016; that is a total of 18 million persons. The number of cohabitating partners increased 29% since 2007. Roughly half of the cohabiters are younger than age 35, yet cohabitation is rising most quickly among Americans who are ages 50 and older. Society’s growing acceptance of cohabitation arrangements may be indicated by the number of states that have extended parental visitation and custodial rights to non-marital partners during cohabitation or upon dissolution of their relationship. While the number of Americans living in a committed cohabitation arrangement is increasing, but there is not much legal protection for them when their relationship ends.

Termination: Statistics also show that only about 10% of these couples remain cohabitating after 5 years. When that cohabitation relationship ends, most state’s divorce laws are unavailable to address any inequities that arose during the period of cohabitation. Inasmuch as a divorce court with divorce laws and principles is often not available to a former cohabiting partner, then resort may be had to enforce the terms of a cohabitation agreement. However, there is a noted reluctance of courts of equity to either find an enforceable cohabitation agreement or apply principles of equity, e.g. to rectify unjust enrichment or to justify a ‘fair compensation’ award to a former partner.

  • Marvin v Marvin: Cohabitants usually are vaguely aware of the historic California decision that dealt with Hollywood actor Lee Marvin, where the court decision said that in the absence of an express agreement, a court may look to a variety of remedies in order to protect the partners’ lawful expectations. Marvin v Marvin, 557 P.2d 106 (California, 1976.) However, there have been few reported court decisions in the past 40+ years that seem eager to follow Marvin in finding an express, or implied, enforceable cohabitation agreement between the partners, or willing to resort to equitable remedies to ‘right perceived wrongs.’
  • Homemaking Services are Not Valid Consideration: While claims of a binding contract or implied contract are often made, courts have consistently held that providing homemaking services alone is not sufficient legal consideration to support a binding contract.
  • Love is Not Valid Contract Consideration: Whenever a court discusses terms of endearment or acts of love or homemaking as a cohabitant’s contributions to the relationship, the claimant’s services are considered by the court to be gratuitous and not entitled to remuneration, i.e. they too are not legal consideration to support a contract. In Featherston v. Steinhoff, 575 N.W. 2d 6 (Michigan Court of Appeals, 1997) the Court observed: “To overcome the presumption that plaintiff rendered services gratuitously, plaintiff must show that she expected compensation from the defendant at the time she rendered services for the  defendant and defendant expected to pay for them.” That standard of proof is seldom met in a customary cohabitation situation.
  • Sexual Relations are Not Valid Contract Consideration: If the only ‘consideration’ for a cohabitation agreement appears to be the cohabitation itself between the parties, implicitly involving sexual relations, the agreement will not be enforced by a court. Sexual intimacies normally are not valid legal consideration, and thus, without ‘valid’ consideration, there is no contract to be enforced. Williams v Ormsby, 966 N.E.2d 255 (Ohio, 2012).
  • Immorality: Other courts have refused to enforce a claimed implied agreement arising out of cohabitation relationship on the grounds of morality. “It is well settled that neither a court of law nor a court of equity will lend its aid to either party to a contract founded upon an illegal or immoral consideration.” Rehak v Mathis, 238 S.E.81 (Georgia, 1977.)
  • Abolished Common Law Marriage: Some courts have also rationalized that if their state has formally abolished common law marriage, that fact indicates a legislative intent to only recognize the unique status of a statutory authorized marriage, e.g. blood tests, license, 3-day wait, formal ceremony, deserving of the state’s protection. Davis v Davis, 643 So. 2d 931 (Mississippi, 1994.)Michigan abolished common law marriage back in 1957.
  • Generally Unsympathetic Courts: One New York court found in a claim for equitable relief after a cohabitation ended that the supportive services provided by the claiming partner for more than a decade were part of the “give and take ordinarily associated with persons who cohabit with one another and  it cannot be said that equity and good conscience cry out for fiscal adjustment.” 104745/2008, 2009 WL 513858 (N.Y. Sup. Ct, February 3, 2009.)

Death: Moreover, there is virtually no law, statute or court created, that addresses the protection of a surviving partner when the other partner in a committed cohabitation relationship dies. If a committed partner is not an heir, what rights do the surviving partner have to the deceased partner’s estate? Virtually none.

  • Consider the 2019 decision of the Alaska Supreme Court, In re Estate of Hatten, 440P.3d 256 (Alaska, 2019). That Court was confronted with a case that involved committed partners in a relationship of over 20 years. When one partner died, he named his partner as the beneficiary of his substantial IRA, but he died intestate as to the balance of his estate. The surviving partner petitioned the Alaska probate court for a share of her deceased partner’s probate estate. The cohabiting parties had two joint credit cards, but they each had maintained all other assets separately for their 20+ years together. There was conflicting evidence as to whether the deceased partner had contemplated marriage  and what oral promises were made between the partners. The probate judge held that there was no enforceable lifetime contract between the partners. Since Alaska’s intestacy statutes do not list a committed partner as an heir, the deceased partner’s heirs, his children from a prior relationship, received his entire estate. The surviving partner appealed. She argued that a non-marital couple was a committed partnership after 20 years, which should therefore enable her to share equitably in the decedent-partner’s estate. The Supreme Court noted that “if a relationship ends at death of one member, Alaska’s probate code comprehensively governs the rights of both surviving spouses and domestic partners….A surviving domestic partner…inherits none of a deceased partner’s estate under the probate code. And, unlike in the case of an inter vivos separation, the probate code has provisions for disposing of all of a deceased partner’s estate, whether the partner died testate or intestate. There is no ‘gap’ to fill with a common law scheme that would distribute the deceased partner’s property according to the partners’ shared intent. If the deceased partner did not provide for the surviving partner through a will, the surviving partner will not inherit the deceased’s property as a testamentary matter.”
  • If not a Will, a valid written cohabitation agreement that establishes the precise terms would be optimal, both during the lifetimes of the partners upon dissolution of their cohabitation, and then enforceable at the death of one partner. However, the reality is that most non-marital cohabitating partners do not engage in such formalities.
  • Decades ago, those individuals who lived in a committed long-term relationship without the formality of a marriage license were somewhat protected if one of the participants died by virtue of the concept of common law marriage. Most states, including Michigan, have abolished common law marriage. Seven states recognize common law marriage by statute: Colorado, Iowa, Kansas, Montana, New Hampshire, Texas and Utah. The last state to abolish common law marriage was Alabama, effective on January 1, 2017. In those states that still recognize a common law marriage, the proponent of the relationship must show evidence that both parties cohabited and agreed to be married. The states that still recognize common law marriage vary on how long the couple must cohabit together to constitute a common law marriage, but in almost all of those states, there must be some evidence that the couple held themselves out to the community as being married. The point is that while in the past a common law marriage might have provided some protection to the surviving partner in a long-term, committed, cohabitation relationship, most states did not fill the void after they abolished common law marriage, Michigan included. If some protection is desired either on the termination of the relationship, or the death of one, the couple probably need to get married.

On the Horizon?: In the past few years a couple of proposals have been floated to provide some legal remedies to the partners in failed cohabitation relationships or to confer some rights on the surviving partner after the death of their non-marital partner. These proposals are definitely contrary to the pro-family, pro-marriage policies of most states that seek to foster; all states protect marriage as a basic structure of family supported by their laws. However, these proposes may be a sign of the future if the incidence of cohabitation continues to increase in American society.

  • De Facto Marriage Act: University of Michigan law professor Lawrence Waggoner has proposed this ‘model’ Act for the  purpose of establishing the division of property and support obligations of an unmarried couple. Of interest is that this proposed model Act is based upon a growing consensus in other countries [Australia, Canada, Ireland, New Zealand, and Scotland] to protect the rights of a partner in a cohabitation relationship For example, Canada includes within its legal definition of spouse cohabitants as well as lawfully married persons for purposes of spousal support obligations.[Ontario Family Law Reform Act of 1986, Sections 29 and 30.] These sources of foreign legislation conclude that the status of spouse has been achieved when the partners’ behavior demonstrates enough of a commitment toward one another to justify declaring that that they are ‘married in fact.’ This proposed Act provides a list of factors for courts to look to in finding a ‘marriage in fact’ exists, which include: intermingling of finances, legal designations, joint children, a sexual relationship, reputation in the community, and mutual commitment to each other. Obviously, the more marriage-like the couple is, the more likely that they will be recognized as qualified for entitlements, such as an equitable division in the event of divorce, or an elective share and intestacy rights on a partner’s death.
  • American Law Institute Principles: The American Law Institute (the source of the many Restatements of Law) identified a set of default rules or principles (in the absence of a cohabitation agreement) to apply to domestic partners to achieve a fair distribution of economic gains and losses incident to the dissolution of their cohabitation arrangement. To qualify as domestic partners those principles include: (i) for a significant period of time the couple maintained a common household; (ii) with their common child; and (iii) for a continuous period that equals or exceeds a cohabitation parenting period set in a rule of statewide application. If established, these factors create a presumption of a domestic partnership that may be rebutted by a contestant by proving that the couple did not share a life together as a ‘couple.’ The Institute then identifies 13 circumstances with regard to establishing the presumption that they are domestic partners, including: statements by the couple and others, facts of intermingled finances, mutual conduct, the presence of emotional or physical intimacy, and community reputation.

Conclusion: With cohabitation on the rise across American society, especially among those age 50 and up, the best protection is a written cohabitation agreement that contemplates rights and remedies when the relationship is either terminated or ends on a partner’s death. That agreement must be supported by valid consideration beyond household services or a consensual sexual relationship. Relying on the ‘law’ or other equitable notions of fairness  and unjust enrichment will probably not take the partners very far if they hope to be treated fairly after a long-term committed cohabitation relationship ends. The partners will have to become proactive, take matters into their own hands, and enter into a written cohabitation agreement, probably modeled on a prenuptial agreement, if they want to assure themselves of some level of protection when the cohabitation arrangement ends.