Cohabiting Couples Can Have Protections Similar to Marriage

Legal documentation can protect your property, children and estate in Massachusetts

By Judy Malmon, J.D. | Last updated on March 31, 2022

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While legal marriage is the normative standard in American culture for couples who live together, have children, purchase real estate, and plan to remain together, it is by no means the only option. Over the last decade, the rate of unmarried cohabitants in the U.S. has steadily increased, particularly among those over age 50.

There are a number of benefits conferred on couples by entering into a legal marriage. However, most of these benefits can be available to unmarried partners outside of marriage, as well. If you’re cohabiting and intend to remain unmarried for an extended period of time, it’s wise to make arrangements to protect yourself and your cohabitating partner, as well as any children you have together. Note that Massachusetts does not recognize common law marriage (laws conferring the benefits of marriage without a ceremony or exchange of vows).

Property Interests

If you and your partner own property together (or plan to), it’s important to establish clear guidelines and legal documentation as to who owns what. Massachusetts law does not recognize equitable distribution in non-marital relationships. If, for example, you purchase a home together and are each contributing to the mortgage, be sure that the deed reflects your intentions. You may hold property as tenants in common, granting to each a one-half interest that can be passed to heirs or sold separately. This is the default title for unmarried co-owners under Massachusetts law. Alternatively, you may name yourselves as joint tenants with a right of survivorship, allowing property to pass without a will.

Similarly, spell out all your agreements regarding both shared and separate property, including bank accounts, cars, savings and investments, financial support, retirement, health insurance policies, household items and gifts. Many lawyers recommend drawing up a cohabitation agreement, similar to a prenuptual agreement, which is enforceable in Massachusetts courts and can establish terms for how you manage financial details of your relationship, what interest each partner has in the other’s income and property, and how you will divide your assets and debt should the relationship end or break up. This kind of agreement can be extremely useful in filling many gaps covered under marital law, as well as day-to-day matters like how monthly bills will be paid.

Paternity and Parenting

You and your partner may have children together, or you may have children from prior relationships. Agreements about your respective responsibilities for children should be covered in an agreement, as well, although Massachusetts law applies the same custody, child support and visitation rights and obligations whether parents are married or not.

One key distinction for unmarried couples is that there is no presumption of paternity. Without legal recognition of paternity, In Massachusetts, the mother has sole custody of a child born out of wedlock. The best and most straightforward way to establish paternity is for the father to sign the birth certificate immediately following birth. Parents may also agree to paternity.

Where a child is biologically related to only one of the partners, there will be no legal parental relationship unless the second parent legally adopts the child (just as with a married stepparent).

Estate Planning

It’s critical to cover your bases when cohabiting in planning for aging, disability and death because the default in a non-marital partnership is that you have no legal relationship. You will need several key documents to establish one:

  • Will— Without a will, Massachusetts law governs who inherits your assets intestate— your children, parents, siblings, or other nearest blood relative. Even more importantly: If you have children under the age of 18, you may designate in your will whom you wish to assume custody upon your death.
  • Durable Power of Attorney—This document will allow your partner to access your financial accounts and take care of financial affairs in the event of your incapacity.
  • Health Care Proxy—Also in the event of your incapacity, allows your partner to make health care and medical decisions on your behalf.
  • Beneficiary Designations—Naming a beneficiary on retirement accounts, insurance and other assets allows these items to transfer to the named person without having to go through probate, whether or not you have a will.

If you’re in an unmarried cohabiting relationship, the best way to protect your mutual interests is to discuss these legal protections with an experienced family law attorney.

For more information on this area, see our overview of family law.

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