Some call it living in sin, others call it living in bliss, but these days it is almost expected that a couple will live together before they get married. In some circles it is socially acceptable for a pair to live together without ever getting married. Forty years ago, this was not the case. According to the 1960 U.S. Census, there were fewer than 100,000 unmarried people co-habitating, and it was actually illegal in many states. By 2000, however, co-habitation had become the norm and as many as 9 million people were co-habiting.
Couples choose to live together for a variety of reasons including: getting to know their partners prior to marriage, sharing expenses, convenience, and the belief that breaking up will be easier if they are not married. Other couples mistakenly believe that simply living together for an extended period will automatically make them married.
Though there have been some highly publicized “palimony” lawsuits, generally in Pennsylvania, marriage is a civil contract created by statute or in some instances by common law. A traditional marriage occurs when a license is obtained from a county courthouse and is followed by a ceremony performed by an officiant. In Pennsylvania, however, a marital union can be created even without a license or official ceremony. This is referred to as common law marriage. Common law marriage will be recognized by the state if a couple publicly manifests its intentions to be perceived as husband and wife. In some instances the Commonwealth will recognize a common law marriage following the death of one partner if the surviving partner can show that the couple held themselves out to the public as husband and wife while they were both alive.
Unlike spouses, co-habitors do not share a civil contract. Benefits, duties, and responsibilities that apply to spouses do not necessarily apply to co-habitors. This may result in unexpected outcomes for a co-habitor.
The contrast between marriage and co-habitation is evident during the relationship, while separating, and even at death. The lack of a formal contract between co-habitors versus the formal contract that marriage provides may prove to be positive or negative depending on one’s perspective.
Marital status while a man and woman live together has enormous legal ramifications. Ownership interest in property is perhaps the most notable. Most property purchased during a marriage automatically becomes the property of both parties. Marriage can give partial ownership interest in property to a new spouse even if that property was solely owned by the other spouse prior to the marriage. For co-habitors, however, their interest in real property is determined by whose name is on the deed despite who may have made the down payment or monthly mortgage payments. Marital status can also affect whether a party is entitled to health care benefits from their partner’s employer’s health care plan. Many companies allow spouses of employees to enroll into company health plans at reduced cost; nevertheless, most companies do not provide these same benefits to non-marital partners. Another distinction made by marital status is access to decision-making and information pertaining to the partner during emergencies. While spouses are considered next of kin in an emergency, a co-habiting partner may be entirely shut out of any decision-making process or information during a crisis.
Many believe that separation for co-habitors is easier from a legal standpoint than for married couples, and depending on the circumstances that may be true since no formal divorce is necessary. For a married couple, Pennsylvania law has a system in which the court will determine what is a fair distribution of a couple’s assets and debts. Known as “equitable distribution” it is based on things such as the length of the marriage, age, and employability of spouses, as well as contributions made by one party to the education or training of the other. A couple that only lived together does not have to go through such a formal division process, however the laws that help to equitably parse assets and debts are not available to them, making it possible for one party to unfairly gain at the other’s expense.
Death treats the survivor of a co-habitation relationship differently from the surviving spouse in a marriage. For instance, when a married spouse dies the surviving spouse is automatically entitled to either a portion if not the entire amount of the deceased spouse’s estate. The surviving partner of a co-habitation relationship, on the other hand, is not legally entitled to the estate of the deceased partner if a co-habiting partner dies without a will. Pension and Social Security benefits automatically flow to the surviving spouse upon the death of the primary beneficiary. A surviving partner of a co-habitation relationship may not be entitled to these same benefits even if that couple had been living together for many years prior to the primary beneficiary’s death, and the surviving partner relied on that income, though we have had some favorable experience with the Social Security Administration where parties were not formally married.
These examples are just a few of the distinctions between marriage and co-habitation. If you would like advice on how to manage or protect your assets, whether you are co-habiting, intending to marry, or already married, please contact our office.
— J. Ken Butera