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CAN NON-MARRIED COUPLES WHO COHABITATE LEGALLY PROTECT THEMSELVES AND THEIR ASSETS?

Today, a greater number of unmarried couples are living together with no intention of ever getting married. In some situations, it is the choice of the individuals (whether male and female or same sex) to remain unmarried; in others, state law may not allow or permit a same sex marriage.

In most states in this country, the law usually does not recognize or give such individuals or life partners many -- if any -- legal rights. However, if the parties do a bit of preparation and enter into the appropriate legal agreements, each can protect his or her interests and can position him or herself to obtain many of the same legal rights as married persons.

The following are several areas where life partners can take steps to protect their interests and create certain rights, interests and benefits between them.


COHABITATION AGREEMENTS

A cohabitation agreement is a written contract entered into by two people prior to living together. These people do not intend to become married (if they were intending to become married, the more appropriate agreement would be a "premarital" or "prenuptial" agreement). Looking at these agreements in another light, they are similar to a pre-marital agreements -- however, rather than being entered into by persons who intend to marry in the near future, they are entered into by two people who intend to cohabit or live together as a family, but will not be legally married (note that while a pre-marital agreement goes into effect only upon marriage, a cohabitation agreement generally is no longer valid once the parties marry).

A cohabitation agreement can address various financial and/or property issues that may arise during the cohabitation or relationship of the parties that must be resolved if the relationship ends. Reaching agreement on these difficult issues before they arise (and while the parties are not involved in disagreements or potential hostilities) can ease the stress and anxiety that often arises should the relationship reach that end. Cohabitation agreement can also provide evidence that the parties intend to live as partners -- and can have the effect of providing the other partner with some rights that would normally be reserved for a spouse.

Usually, cohabitation agreements set forth what financial resources each of the parties will contribute to pay the expenses incurred by the parties while they live together. The agreement usually provides that upon termination of the relationship, the joint property of the parties will be split in the same percentage as the contributions of the parties. Each person usually retains his or her own separate property that brought into the marriage along with certain other property.



In addition to preparing a cohabitation agreement, the following documents can and should be prepared so that one partner can provide care and support to the other partner, and be vested with some of the same rights as are married couples upon the illness or death of one of the partners:


LIVING WILL - ADVANCED HEALTH CARE DIRECTIVE

An advanced health care directive is a combination of a living will and durable power of attorney. This document allows you to tell your doctor and your family members what kind of care you would like to have if you become unable to make medical decisions for yourself -- and what types of healthcare you would NOT like to have performed. An advanced health care directive allows you to appoint someone you trust (i.e. your partner) to speak for you when you are incapacitated.

The living will portion of this document allows a person to request that artificial life-sustaining procedures be withheld or withdrawn when he or she is unable to make responsible decisions regarding medical care. It also permits the person to appoint the other partner as someone that can make these important decisions should the person not be able to make the decisions for him or herself.

The durable power of attorney portion of the document allows a person the opportunity to designate the other partner as the person to handle the financial and property aspects of his or her life should a medical emergency or long-term situation arise.


LAST WILL & TESTAMENT

A will is crucial for those persons that are not married. In almost every state, a non-married partner will usually not receive any of the testator's property unless that person is specifically named in the will. As such, unless you create a will providing that your property and assets (some, part or all) be provided to your partner, your non-married partner may receive nothing under the law. As such, a will is a powerful tool to allow your wishes to be fulfilled.


QUITCLAIM & SURVIVORSHIP DEEDS

If one of the partners needs to transfer the ownership of real property to the other partner (or to both partners), that person will need to prepare, sign and file a deed. A deed acts as the document showing the transfer of a piece of property from one person or party to another. Again, deeds can transfer property from one partner to both partners, or directly to the other partner if that is the wish of the property owner. To be effective, the deed must be filed or recorded with the recorder's office or real estate office in the county where the property is located. There is usually a fee for filing the deed and transferring the property.

 


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DISCLAIMER REGARDING LEGAL ADVICE: None of information contained on this web site is intended to constitute legal or other professional advice, and you should not rely solely on the information contained on the site for making legal decisions. When necessary, you should consult with an attorney for specific advice tailored to your situation.




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