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Legal Risks of Living Together

Updated: Feb 15, 2021

There is nothing sweeter than love, and for many couples in love today, being committed to each other means living together without that piece of paper that says you are married.

Regardless of one’s personal views about marriage, there are still valid reasons to marry, and not all of them are evident at the time couples decide to move in together.

While a lot of the reasons to be married concern money, that’s only part of the story.

According to Kiplinger, in many states, without being married, if you walk away you will leave with little to no spousal support, for example, no right to inherit unless you are named in a will, no right to retirement benefits, Social Security, to sue for wrongful death of your partner, and so on.

Note that cohabitation can result in:

  1. Denial of the unlimited marital deduction for federal estate tax purposes, which allows property to pass from one to the other on death tax-free for married couples.

  2. Not being considered as a legal heir.

  3. In California and other states there is no such thing as common law marriage. Ten or 50 years gives no unique legal status.

  4. As to disclosure issues — and confidentiality — an unmarried partner would have no priority over anyone else. It becomes much more difficult for the non-spousal partner to get information because of HIPPA.

  5. Receiving Social Security benefits requires being married. Living together, for no matter how long, does not provide those protections.

  6. If you love each other, have an estate plan in place. Do not think that “palimony” will save you from financial disaster. Without proving an agreement to share ownership or support the other should you separate; you are on your own.

Marriage for Older Americans?

However, there are several good reasons why older Americans might NOT want to marry, including:

  1. To not jeopardize your rights to Social Security from a prior marriage.

  2. To protect your children’s rights to an inheritance from a prior marriage.

  3. If you receive a pension, you may not want a situation where that person has rights to it. To do so would put your children second in line.

Today, more Americans are living together without being married than at any other time in our history. That being said, there is an old saying among family law attorneys: “In love, you plan for the best. In business, you plan for the worst.”


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