Choosing Cohabitation

Cohabitation Agreements: Estate Planning for Unmarried Partners

The number of Americans living together as unmarried partners is on the rise. As reported by the U.S. Census Bureau in 2019, more adults are delaying marriage or forgoing it altogether in favor of cohabiting–reportedly as many as 17 million people cohabit (triple the number from two decades ago). Cohabiting partners who are not planning to get married may still want to consider formalizing their arrangement through a “Cohabitation Agreement” as there are many benefits.

What is a Cohabitation Agreement?

A cohabitation agreement is a legal contract between people living together in the same household that are in a romantic relationship but who do not plan to marry. The purpose of the agreement is to ensure that both partners are protected financially if the relationship ends, whether by uncoupling or by death.

Cohabitation agreements extend legal protections and rights to an unmarried couple, where state law normally limits these rights to married partners. A non-marital cohabitation agreement details each partner’s rights and protects both partners so long as it is not one-sided. These agreements offer some of the same protections as prenuptial agreements for partners intending to marry, including safeguarding each partner’s individual assets and interests. 

Provisions to Consider in a Cohabitation Agreement:

  1. Whether property purchased is going to be in one or both partners’ names; who will be responsible for making the payments; and what percentage of ownership both partners will have.
  2. What happens to said property if the partners split up.
  3. In the case of separation and one partner moves out, how much time will they have to do so.
  4. If renting, whether both partners will be on the lease and who will be responsible for paying the rent.
  5. Who pays utilities, insurance, and other expenses and in what proportion.
  6. In case of split up, what happens to personal property purchased prior to cohabitation.
  7. In case of break up, what happens to personal property, vehicles, furniture, bank accounts, and other items acquired during the cohabitation period.
  8. Who is responsible for debts incurred during the cohabitation period.
  9. Ownership of any joint bank accounts.
  10. Whether one partner will pay support to the other partner after a break up.

Other Types of Agreements

Cohabitation agreements are not to be confused with rental agreements, roommate agreements, prenuptial agreements or a cohabitation clause (a common provision in a divorce agreement when children are involved).

Enforcement of Cohabitation Agreement

While some courts may enforce an oral or non-written cohabitation agreement, it’s best to have such agreements in writing with the terms outlined as specifically as possible.  Verbal agreements and agreements with broad or poorly stated provisions are often difficult to enforce. Additionally, addressing specific issues in writing and in detail makes it easier for everyone to understand exactly what the partners intend. 

Estate Planning Documents

Cohabitation agreements are just one piece of a comprehensive estate plan. Cohabiting partners who want to leave property to one another upon death can do so through a Will or a Trust.  They can also name their partner as their agent to make healthcare decisions and engage in financial transactions on their behalf in the event of incapacity. 

A qualified estate planning attorney can assist cohabiting partners, or those considering a cohabitation arrangement, with not only negotiating and drafting a cohabitation agreement, but creating a comprehensive plan to transfer property at death and plan for incapacity through Wills, Trusts, and Power of Attorney documents.

If you have questions or would like to schedule a meeting with an attorney at Loveland | Grace | Hurley, PLLC about making a cohabitation agreement and estate plan, please contact us to schedule an appointment.  We offer appointments in-person as well as by phone and video conference.

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