Q: I am 66 and my male friend is 74. We both lost our spouses to cancer and met at a support group three years ago. We each have two children from prior marriages, and grandchildren on both sides. We began dating. Earlier this year we began living together - to the dismay of some of our children, two of whom seem to have forgotten they lived with their present spouses before they married.
Although we have been pressured by our children to get married, we are comfortable with our decision. The primary reason for not getting married is that since each of us has assets and retirement income from our prior marriages, and each of us is financially independent, we don't want to become responsible for the cost of the other's health care or nursing home care. We have one joint bank account to handle our household expenses, but our other assets remain separate. On one hand, we want to make sure that no one can say we are common-law married; on the other, we want to be involved in the other's health decision-making. Are there ways to have it both ways?
A: When two individuals live together without the benefit of ceremonial marriage, but share assets and income and then separate or die, the relationship is not governed by state statutes, case law and family courts; rather, it's governed by agreements, implied agreements and intent. And when one person is incapacitated or dies, circumstantial evidence often becomes the rule rather than the exception.
Because each state recognizes marriages that validly take place in another state, generally speaking, all states will recognize a common-law marriage if it was validly contracted in one of the few states that still permits marriage by this type of contract. However, you and your friend will not be "common-law married" - no matter how long you live together - unless both of you 1) intend to be married, 2) have the mental capacity to marry, 3) hold yourselves out as husband and wife and 4) begin the relationship in a state that recognizes common-law marriage. To allay your fears, we suggest that you consult with an experienced matrimonial lawyer in your state of residence to make sure you haven't made an unintentional misstep in your plan. (For more, go to the American Academy of Matrimonial Lawyers' Web site at www.aaml.org).
But even without a common-law marriage, you and your friend should plan your futures out, since you could leave yourselves open for a potential estate claim for services or unjust enrichment. In addition, some court decisions have allowed the division of the property of unmarried co-habitants, and inheritance when a man and woman live together and create a relationship that is "tantamount to a marital family except for a legal marriage."
To be on the safe side, we suggest that you put your intentions in writing through a co-habitation agreement, by which you both clearly state your agreement not to be married or to make any claims against the other. You can even describe what events will have to take place for you to be considered "married" - such as securing a marriage license and going through a ceremony with your families present. In this way, it will be most difficult to assert and prove a common-law marriage or financial claim.
If you aren't married, neither of you has the legal right to be involved in the health care decisions of the other or, for that matter, to even visit the other in a hospital or health care facility. Under the law of each state, adult health care consent acts set forth a hierarchy of individuals to make your health decisions should you be unable to do so. If you don't have a spouse, the law will look to your children, siblings, etc. For that reason, each of you should sign Health Insurance Portability and Accountability Act (HIPAA) medical releases authorizing the other to share and participate in health care information, not to mention a health care power of attorney naming the other as agent or co-agent with one or more of your children.
With the current administration and Congress aggressively moving toward reduction and restriction of Medicaid benefits and eligibility, we will see more and more senior Americans like you opting for the benefits of co-habitation rather than the financial detriments of marriage.
- Jan Warner is a member of the National Academy of Elder Law Attorneys and has been practicing law for more than 30 years. Jan Collins is editor of the Business and Economic Review published by the University of South Carolina and a special correspondent for The Economist.