Let's Get Together: Creating Legal Documents to Protect Unmarried Couples

More and more couples are choosing to live together or buy property together prior to getting married, or, in many cases, instead of marriage altogether. Getting married involves a couple entering into a legal contract with each other that outlines the many rights and responsibilities that come with marriage and dictate the couple's future, whether that include separation or death.

Fortunately, many, though not all, of the rights, privileges, and protections that married couples receive are also available to cohabitating partners in unmarried relationships, though these rights are not conferred automatically. In order to secure these protections, unmarried couples can create a set of contracts that define these rights and obligations. These contracts function similarly to prenuptial agreements, and set forth how issues such as money, property, and debt, among other things, will be handled both during and after the relationship.

This guide will explore the legal steps that unmarried couples can use to protect themselves both as a couple and as individuals.

Domestic Partnership Agreements

A cornerstone of the legal documents available to unmarried couples is the Domestic Partnership Agreement, also known as a agreement of cohabitation, non-marital contract, or a living together contract. Domestic partnership agreements are permitted by many states and allow unmarried couples to agree on a number of important issues, such as financial obligations and property arrangements with each other, both during cohabitation and after it ends due to either a death or a breakup. For example, a domestic partnership agreement can detail who is responsible for which monthly expenses and/or how much money each is expected to contribute to a joint bank account. This is especially useful for couples that have large disparities between their current income and future earning potential.

Deciding whether to create a domestic partnership agreement

Generally, domestic partnerships become more prudent and necessary the longer a couple is together and the more they intermingle their property, finances, and lives. Living together contracts make sense for couples where a significant amount of money, property, and debt are expected to accumulate between them. These agreements are also a good idea for older couples to ensure that property is distributed according to their wishes upon their death. Finally, for couples who know that marriage will never be a good fit for them, a domestic partnership agreement can be an excellent alternative. By creating this agreement, they will have the opportunity to define the relationship's rights and obligations.

Contents of a domestic partnership agreement

Non-marital contracts do not necessarily need to be complex affairs with lots of impenetrable legal jargon. A non-marital contract should be written in plain language that both members of the couple understand and agree to, with as much or as little detail as they feel is necessary. Here are some important potential issues to consider including in a domestic partnership agreement:

Property accumulated during the relationship -- One of the main purposes of a non-marital contract is defining how property acquired during the relationship should be treated. For example, if one member of the couple buys a car, home, or another major purchase, does the other member of the couple have an equal ownership interest in that item? What if the item is purchased using personal savings? Since an unmarried couple is not protected by legal presumptions created by entering into marriage that would resolve these sorts of issues, they can make these decisions on their own and then formalize them by including them in their domestic partnership agreement.
Property acquired via inheritance or gift -- Generally, most people like to keep items they have received as gifts or inheritance as separate property that will remain their own property if the relationship ends. The couple can use their non-marital agreement to write down what they would prefer to do with this sort of property.
Property from before the relationship -- Many people prefer to keep items acquired before their relationship began or before they moved in together as separate property.
Expenses -- A domestic partnership agreement can be used to outline how shared expenses, such as utilities, rent, and other major expenses, will be paid. This can be a common area of contention and disagreement, so it is important to be clear about expectations. For example, a couple could decide to split up responsibility for the bills, split all bills equally, pay bills proportional to their income, or pool their resources into a joint account and pay from the shared bank account.
Separation or death -- Though it can be uncomfortable to consider, it is vitally important to define what will happen to property and assets when the relationship ends, whether that is due to the death of one of the partners or a breakup. Since divorce laws do not apply when an unmarried couple breaks up, it can be an important form of protection and provide guidance if the couple winds up in court.
Dispute resolution -- Even the happiest couples can get into disagreements. In case of a major disagreement arising, couples may want to define how those disputes should be resolved. For example, the couple could agree to first pursue couples counseling, mediation, or arbitration before taking the matter to court.

Wills and Beneficiary Designations

Everyone should have a Last Will and Testament to dictate where their assets should go after they die. However, having a will in place is especially important for unmarried couples.

Unfortunately, even if someone is cohabitating and in a serious committed relationship with someone, their partner is not entitled to any part of their estate should they die without a will specifying that they would like their property to go to their partner. For unmarried individuals who die intestate, or without a will in place, their property must still be distributed. By not leaving a valid will or trust, or transferring property in some other way, such as through insurance, pension benefits, or joint ownership, it is essentially left to state law to write their will for them. This doesn't necessarily mean that their property will go to the state. This only happens in very rare cases where the deceased leaves no surviving relatives, even very distant ones. However, it does mean that the state will make certain assumptions about where they would like their money and property to go -- assumptions with which they might not agree. For more information about how to write a thorough and valid will, please see the guide Will Writing 101: Essential Facts and Features in a Valid Will.

Some assets, such as retirement benefits and life insurance policies, pass by beneficiary designation rather than through a person's will. If a person would like their partner to inherit these assets as well, they must take the extremely important steps of naming their partner as their beneficiary on all relevant beneficiary designation forms for all retirement accounts and life insurance policies. If someone has already named another person as their beneficiary and would like to change the designation to their current partner, they can use a Change of Beneficiary form.

Advance Healthcare Directives

Though no one has automatic power to make health care decisions for another person if they become incapacitated, doctors typically look to a patient's closest living relatives to step in when the patient is no longer able to make these important decisions themselves. For married couples, their spouse is considered their closest living relative. For unmarried people, their closest living relatives are typically deemed to be their children, parents, or siblings. For unmarried couples, without putting legal documents in place, a significant other who is not connected to them by marriage has no legal rights to make medical decisions for their partner under these circumstances.

For this reason, it is prudent for unmarried couples to create valid Advance Healthcare Directives, also known as Living Wills. Using an advance healthcare directive, a person can appoint their partner to act as what is known as a healthcare agent, responsible for making healthcare decisions for them if a time should come when they are not able to make them for themself. The healthcare agent will have the authority to make a wide range of healthcare decisions, such as whether or not the patient should receive a risky operation, be given certain medications, or be placed on or taken off of life support. The agent, in most states, will also be given access to medical records and given the power to request changes of physicians or other healthcare providers.

In addition to a living will, which covers most general purpose healthcare matters, a couple can also take the time to create a Mental Healthcare Declaration and Power of Attorney. This document is used specifically to explain preferences related to mental healthcare treatment and name an individual to advocate on their behalf and make mental health treatment decisions when they need this type of healthcare and are incapacitated, going through a mental health crisis, or otherwise not able to advocate for themselves.

Durable Powers of Attorney

Similarly to advance healthcare directives, a Durable Power of Attorney agreement is intended for to be used in case someone becomes incapacitated and cannot make important decisions on their own. In this case, a durable power of attorney is used to manage a person's financial affairs. This document allows a person to grant legal and financial authority to a person named as their agent under circumstances where they are no longer able to manage their own finances. For unmarried couples who live together and share their financial assets and responsibilities with each other, it may be wise to execute these documents and give each other the authority to act on each other's behalf in financial dealings. Without these documents, they will not be automatically granted this power.

Durable powers of attorney are incredibly important documents since they give the person named as the agent full access to all financial documents and dealings. These documents should only be executed for couples who are in serious and trusting relationships, since it would be easy for someone to take advantage of another person if given this kind of unfettered access.

Final Takeaways

Living together and owning property with a romantic partner can be an amazing step forward in creating a shared life with a loved one. However, it's important to think ahead and put protections in place that will guide the relationship and plan for the future. Without the structure and legal protections of marriage, none of those rights and obligations will come automatically and should not be taken for granted. By getting the right legal documents in place early on, a couple can work to protect themselves, their finances, and their property, as well as their peace of mind.

Domestic partnership agreements allow unmarried couples to agree on a number of important issues, such as financial obligations and property arrangements with each other, both during cohabitation and after it ends due to either a death or a breakup.

These are primarily used by couples who expect a great deal of property to accumulate between them, older couples, and couples who plan to stay together long-term but do not plan to ever get married.
These agreements include information about ownership of property from before and after the relationship, arrangements for expenses will be paid, and dispute resolution in case of major conflict.

Unmarried couples can use a will to dictate that their assets will go to their partner when they die.

If an unmarried person dies without a will, even if they are in a committed relationship at the time, the courts will give their assets to their closest living relative by default.
Couples can also use beneficiary designation forms to name their partner as their beneficiary on life insurance and retirement policies.

Using an advance healthcare directive, a person can appoint their partner to act as a healthcare agent, responsible for making healthcare decisions if they are incapacitated.

There are also mental healthcare declarations that are used specifically to name someone to make decisions related to mental health treatment.

A durable power of attorney can be used by unmarried couples to give each other the authority to make financial decisions for them if they are incapacitated and unable to make these decisions on their own.

About the Author: Malissa Durham is a Legal Templates Programmer and Attorney at Wonder.Legal and is based in the U.S.A.