Pittsburgh Family Law Services, P.C. Blog

Over the last few decades, the reality of relationships has changed. Put simply, couples just aren't getting married as much as they used to. The reasons are as diverse as the couples who choose to live together and range from "it's just a piece of paper" to "I was already married once before and won't do it again." Others decide to live together for a period of time to see if marriage is an appropriate step to take. Many of these relationships function identically to marriage in every way that society perceives marriage; couples buy houses, name each other as beneficiaries of retirement plans, and have children together. Yet as much as these relationships look like and function as marriages, they are legally not the same. 

Unlike married couples, cohabiting couples at this point in time in Pennsylvania do not have the same legal protections. Spouses in Pennsylvania have automatic rights when a marriage breaks down, or when one person passes away. Here are two ways that cohabiting couples can find themselves in legal trouble: 

The relationship breaks up

The most obvious potential issue for cohabiting couples is that there are no automatic rights if the relationship dissolves. For married couples, Pennsylvania has guidelines for how to distribute property during a divorce. In the case between married couples, even assets that are only titled to one person, such as a retirement account, are considered part of the marital estate. This is completely non-existent for unmarried couples. Although of course both partners retain rights to jointly titled property, they have no automatic rights to property titled solely to the other person. Many couples think this can be avoided by titling everything jointly or by naming each other as beneficiaries. There are some inherent problems with this plan though. First, not everything can be jointly titled.  You can't, for example, hold a 401(k) in joint names even if you wanted to do so. Other times, one partner owns a house and the other partner moves in but is never placed on the title. This could be because the other partner wouldn't qualify for a mortgage, or it could be because they simply forgot to do it. Even in assets with beneficiary designations, those can often be changed, with limited exceptions. 

The result of this is a partner may spend years paying and contributing to growing equity in a house, and not be entitled to any portion of it if the relationship breaks apart. Likewise, a partner may have spent years maintaining the household which allowed the other to contribute to a substantial retirement plan. The partner may have chosen not to work in reliance on having access to that plan. However, an unmarried partner has no automatic right to this asset. The partner may find himself or herself starting over with very little individual assets. 

Finally, the lower-earning partner is not automatically entitled to financial support from the other. This is the complete opposite in Pennsylvania where at least during the course of divorce proceedings, a lower-earning spouse is entitled to financial assistance. Depending on the difference in incomes, this can be a substantial amount which many consider critical in re-establishing financial independence.  

One partner passes away without an estate plan

Not every cohabiting partnership ends in a break-up. In other cases, one partner passes away and had no estate plan in place. This leaves the surviving partner in a particularly precarious position because they have no rights to inheritance. If you die without an estate plan in Pennsylvania, your estate will be divided according to the default plan Pennsylvania already has. Everything passes to your closest surviving heirs.  This means that if your parents are your closest surviving heirs, they will be entitled to your estate even if you don't want this to occur. Your partner is also not automatically entitled to be appointed as your guardian if you become unable to make your own financial or personal decisions, nor will they be the first person authorized to make medical decisions if you cannot communiate your wishes.  

Of course, very few couples deliberately choose not to create an estate plan. For many, it's simply that they thought they had more time, or assumed the surviving immediate family members would support the partner. This of course can and does happen. But it also happens where even previously amicable families change when someone passes away.  

How to protect yourself and your partner 

If you and your partner wish to live together without being married for the foreseeable future, it's critical that you put your wishes in writing. You can first create a cohabitation agreement. Similar to a pre-nuptial agreement, this is a legally enforceable contract which lays out parameters for what your "combined" property will consist of, and how to divide the property and provide support for the other if the relationship ends. You may decide that you're willing to waive certain protections. But by putting it in writing, it will be a deliberate choice after thinking carefully about your potential future. When drafted by experienced attorneys, these agreement protect both partners (or, the inability to come to an agreement allows a couple to decide whether they should move in together in the first place). 

The other critical step to take is create an estate plan. The estate plan should lay out the desired distribution and what you would want your partner to receive. A comprehensive estate plan should also include Financial and Healthcare Powers of Attorney. Especially if you're a younger couple moving in together, you're far more likely to need Powers of Attorney than a Will. It's important not to overlook these vital documents.  

Cohabiting couples automatically face challenges in Pennsylvania when the relationship ends in death or divorce because they aren't legally recognized. By carefully planning in advance, you can protect both your own interests as well as your partner's interests.