Legal Considerations for Cohabitating Couples


Today, many couples choose to cohabitate rather than enter into marriage. However, those who do so should be aware that cohabitation does not necessarily come with the legal protections that are applicable to marriage, nor confer benefits to partners in the event of death or incapacity. In addition, unmarried couples who have cohabitated for a long period of time may also have acquired a house or a substantial amount of property. As New York State does not recognize common law marriage, it is important for both cohabitants to carefully consider their legal and financial rights.


Cohabitation Agreement

In many situations, a couple living together share the same responsibilities that they would in a legal marriage. A cohabitation agreement is a legal document which allows for an unmarried couple who is living together to protect their rights and property. The agreement could include provisions that would specifically delineate the division of property in the event that the union does not work out. In addition to clarifying the distribution of assets and property accumulated by the couple, a cohabitation agreement could include child support arrangements and pet custody, as well as address estate planning. A cohabitation agreement may also include provisions as to real property, bank accounts, and expenses.


Estate Planning

If you and your significant other live together but are unmarried, he or she does not have the same rights and protections which they would in a legal marriage in the event that something happens to you. For example, if you are married and your spouse dies without a will, you and any children you and your spouse had together would be entitled to inherit. If you are not legally married, and the paternity of the children was never established, you and your children are not legally entitled to any of the decedent’s property. Therefore, partners in a cohabitating arrangement need to consider planning ahead. Such planning could include creating wills and trusts, as well as health care proxies and powers of attorney in the event of incapacity.


Domestic Partnerships

For couples in New York who choose not to get married but wish to have some of the same rights as married couples, a domestic partnership might be an option to consider. For couples in a close and committed relationship who have been living together continuously for six months, establishing a domestic partnership could confer rights such as family leave, hospital visitation, and eligibility for health insurance, life insurance, and death benefits. A domestic partnership may be entered into, if certain qualifications are met. The procedure generally entails filing an affidavit and applying at the county or city clerk’s office, depending upon the jurisdiction. However, it is important to note that in the event a domestic partnership dissolves, the couple cannot rely on the legal mechanisms applicable to a divorce to resolve issues concerning property, child custody, and division of assets. If you have questions concerning the benefits which may be conferred to you and your partner by entering into a domestic partnership, it is best to speak with an attorney about the specifics of your situation.


It is important to be aware of the legal and financial implications concerning cohabitation. As every situation is unique, it is best to speak with an attorney regarding your specific circumstances. Contact the Law Office of Jessica M. Semins to schedule a consultation at (646) 397-6844.


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Attorney Advertising.  The content contained herein is not intended to be construed as legal advice, nor form an attorney-client relationship. (c) 2019 The Law Office of Jessica M. Semins, Jessica M. Semins, Esq.