Written by Avvo Staff

Premarital Cohabitation

Premarital cohabitation occurs when two unmarried people in an intimate relationship live together prior to marriage. Since premarital cohabitation is a living arrangement and not a legal agreement, it doesn't have its own specific rights or obligations regarding property ownership, insurance benefits, death benefits, or related issues. However, as premarital cohabitation becomes more popular, states and municipalities are starting to extend legal benefits to cohabitating couples through various means.

Premarital cohabitation and common law marriage

A common law marriage entitles a couple to the full rights of marriage. Because of this, common law marriage requires more than cohabitation between a man and a woman. The couple must intend to be married and publicly present themselves as husband and wife. In addition to the District of Columbia, nine states permit common law marriage: Alabama, Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, South Carolina, and Texas. Additionally, five states have grandfathered common law marriage: Georgia, Idaho, Ohio, Oklahoma and Pennsylvania, allowing those established before a certain date to be recognized. New Hampshire recognizes common law marriage only for purposes of probate, and Utah recognizes common law marriages that have been validated by a court or administrative order. If a common law marriage begins in a common law state, other states must recognize the marriage.

Premarital cohabitation and domestic partnership

A domestic partnership is a legal arrangement that lets unmarried cohabitants gain limited rights. Both heterosexual and homosexual couples can be domestic partners. States generally require a cohabitating couple to register for a domestic partnership, and may limit the age, sex, and kinship of those who are eligible. Couples usually must sign an affidavit, certificate, or declaration form that affirms their commitment to the partnership. Several states and municipalities permit domestic partners to receive health insurance coverage, family leave, and retirement benefits similar to those of married couples.

Establishing your rights as unmarried cohabitants

In a marriage, anything acquired during a marriage is community property. This means the law recognizes it as a shared asset. There are no legal protections for unmarried cohabitants. However, if you live together as a couple, you can enter into a cohabitation agreement. This agreement can set terms for shared property and shared liabilities, and make arrangements for financial support. If the agreement is in writing, most courts will consider it enforceable if you and your partner separate prior to marriage.

Unmarried cohabitants can also establish joint tenancy on real estate they own together. This means that you and your partner have undivided interest in the property and the right to full ownership if one partner dies.

If you or your partner dies intestate (without a will), laws only provide that spouses and family members inherit. Creating a will that specifies your benefactors overrides these laws and allows property to pass to the other partner. Additionally, a living will can make provisions for you or your partner to make medical decisions for the other if he or she becomes medically incapacitated.

If you have a child out of wedlock, he or she is recognized as the mother's child and can only acquire death benefits from the mother. If paternity is established, the child can inherit from either parent.

Additional resources:

Encyclopedia of Everyday Law: Cohabitation

Woman's Law Center of Maryland: The Legal Rights of Unmarried Cohabitants in Maryland

Related Legal Guides:

Common Law Marriage

Marriage Laws and Licenses

Prenuptial Agreements

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