Estate Planning for Unmarried and Cohabiting Couples

Benjamin Franklin got it right, as he so often did, when he wrote that “in this world nothing can be said to be certain, except death and taxes.”

This is the reason why estate planning is a necessary step for every person, regardless of their life situation. But when two people live together in a committed relationship without being married, the need for estate planning rises considerably, as the law will not inject by default the rights that married couples will have who have not engaged in any estate planning.

The following discusses some of the considerations and issues that unmarried cohabiting couples should consider.

How Will Your Assets be Divided?

Estate Planning for Unmarried CouplesIn Massachusetts, without a will, estate planning, or assets being titled as co-owned (such as “joint tenancy with right of survivorship”, or “JTWROS”), assets pass by law to the heirs of a decedent.  In a relationship with an unmarried couple, when one of the partners dies, ownership of all of the decedent’s assets will automatically pass to the decedent’s survivors (which could be their children, their parents, their brothers and sisters, or even some long-lost relative).

And by property, this means everything.

Interests in real property.  Interests in cars and vehicles.  Even interests in household furniture and appliances and that lawn mower sitting in the garage.

Situation # 1 – No Asset Planning

Your loving partner just died in a tragic accident.  The house in which you lived, and the car that you shared, were both titled in your partner’s name.  You and your partner collectively purchased (approximately equally) all of the furniture and assets in your house, including TVs, computers, kitchen appliances, and everything else.

Your partner’s kids from a previous marriage want their fair inheritance.  What is the result?

Assuming these facts, they get the house, the car, and are entitled to receive half of all of the household assets.  If the house and car were titled as JTWROS, you would instead inherit the house and the car, but the kids would still be entitled to half of the household assets.

In order to protect a situation in which your partner’s kids now share joint ownership of a coffee maker with you, considered estate planning can be undertaken to resolve these issues.

Situation # 2 – How to Leave Something to My Kids

Situation #2 is the same as Situation #1, except the spouse owning the house and the car wants to make sure her partner is entitled to live in the house and use the car.  Possible options might be:

  • Each spouse (in a will or through an estate plan) bequeaths all of her personal property to her partner, except as otherwise specified.  This will allow the surviving partner to have full ownership of the household assets.
  • The spouse owning the car may provide a mechanism for allowing the surviving spouse to purchase the car for a specified price from the children, or the spouse owning the car could simply have the car re-titled as JTWROS.
  • A revocable living trust may need to be created that will allowing the surviving partner to remain in the house for some period of time.  Under this arrangement, a number of issues may need to be considered, including:
    • What happens if the surviving partner subsequently gets married?
    • What happens if the surviving partner invests significant money into the house – should kids be required to pay the surviving partner for such investment?
    • What happens if the surviving partner does not keep the house well maintained – how can the kids protect their interest?

Situation # 3 – Massachusetts Heirs, Different Priorities 

Let’s say, for example, a person dies without a spouse, but has a number of children.  The person owns a cabin, which may be used for both generating rental income and for use on personal getaways. If the cabin is left to a number of children, some may want to sell it and pocket the proceeds, some may want to use it themselves during vacation season, and some may want to simply rent it out.

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Each solution will have its own challenges and expenses, including what are a fair price to receive and who is responsible for finding a rental agent? The cabin could also have a sentimental attachment that different heirs will feel in different ways.

The likelihood that all heirs will agree on dividing up such property to everyone’s satisfaction is small. The cabin could also be left to a surviving spouse, or to the other person in a cohabiting arrangement, but since the cabin cannot be parceled out or cut into several small pieces, estate planning can determine what will ultimately become of the cabin.

Situation # 4 – A Surviving Spouse in a Cohabitation Situation

In some situations, a person living with another person may still be legally married to someone else.  Even though the emotional relationship of the married partner may have ended long ago, the law will not recognize the fact that the person now cohabitating with a boyfriend or girlfriend “moved on” to this newer relationship without first having become legally divorced.  Instead, the legal spouse will now be afforded all of the same benefits as though a happy marriage still existed.

In the estate planning process, it’s important to determine what to do about any surviving spouse(s).  If one or both of the cohabiting parties is still legally married to someone else at the time of their death, the surviving spouse has legal standing in matters where no will has been identified – including having primary decision making over the remains of a deceased spouse! If a surviving spouse(s) have agreed-upon ownership rights in any personal property, those will need to be memorialized in any estate planning documents.

As noted in our website, common law marriage is not recognized in Massachusetts, and has not been for centuries. This puts a greater emphasis on the role of estate planning by unmarried couples, so that their final wishes will be carried out as they want them to be. Ambiguity will lead to conflict whenever competing interests dig in their heels.

Helping Address (and Resolve) Many Issues

Cohabitating Couples in MAAs you can well imagine, there are many legal issues that must be addressed when dealing with cohabiting partners, including those noted in these examples.  Our role is to review with you these and many other issues regarding your situation so that we can develop the right plan for you, taking into account your partner, your family, and your loved ones.

If a person wants to leave financial assets and/or personal property to the person they are living with on their death, an arrangement to this effect can be made through creating estate plan built around a living trust, through re-titling assets, or through a combination of both.

However, when there are assets–financial or otherwise–to be shared among the decedent’s children, siblings, or parents, the contours of that distribution need to be set forth very clearly. The monetary value of all assets must be disclosed, or some way of calculating their fair worth must be provided. The more something is worth, the harder it can be to divide it to everyone’s satisfaction.


If you’re part of the Massachusetts living together community and are living with your significant other, whether in a hetero or same-sex relationship, it’s crucial to get legal assistance to protect your assets, desires, and family.   As a lawyer who is part of a blended family, I understand the challenges that you may be facing, as well as your unique situation.  Without proper legal planning, you (and potentially your family) may be at a significant risk in many situations.

What You Should Know About Your Legal Rights if You Are Not Married to Your Partner

If you’re not married to your partner in Massachusetts, here are a few important facts to know:

  • Massachusetts does not recognize common-law marriage.

Historically, many states recognized common-law marriage, so that a couple who lived together and held themselves out as husband and wife would be deemed to be legally married after a certain period of time, even though they never “officially” married.

Most states, including Massachusetts, do not recognize common-law marriage.  So couples who are living together simply don’t have the same protections under the law that married people do. As a result, if you are cohabitating and wish to protect your rights, you should understand that many important rights can only be protected through estate planning (a few of these rights are discussed below).  Other rights can only be gained through marriage.

  • If you’re not married, there are a number of rights that you won’t get under the law.

Unlike their married counterparts, cohabiting couples have absolutely no legal right to the estate of the other partner when that partner dies without an estate plan.  We’ve seen so many instances where the surviving partner of an unmarried couple is “left out in the cold” when the other partner suddenly dies without naming them in an estate plan. The laws of the Commonwealth don’t recognize common law marriage, so when a partner dies without any estate plan in place, the law dictates that all of the deceased’s property will go to their surviving blood relatives (children, siblings, parents, etc) not to the surviving partner.  As harsh as this result may seem, that’s the law in Massachusetts.

There are also other rights that cohabiting partners simply don’t have that their married counterparts do.  If you break up after a long cohabiting relationship, you have no automatic rights to a division of the relationship assets of the other.  “Alimony” (also known as “spousal support”) is only available to married couples in Massachusetts. If you are cohabiting and then break up, there’s no guaranty that you’ll share in the property you’ve worked hard to acquire during the relationship.

Also, government entitlements, particularly those concerning social security survivor benefits, are not available to the survivor in cohabitation agreements.  When I meet with you and understand your circumstances, we can discuss these matters if you wish.

  • There are ways to legally protect many of your interests. 

We help clients understand and protect their interests concerning a number of important interests, including addressing the following questions: 

  • Do you want to make sure that your partner can visit you in the hospital and make decisions on your behalf if you are hospitalized and cannot communicate your wishes?
  • Who do you want to inherit your assets if you do not have a will or an estate plan? (Under Massachusetts law, it will not be your partner.)
  • Who will be entitled to make funeral arrangements if your partner dies?
  • What will happen to your assets if you decide to separate from your partner?

If you’re not married, there will be many decisions and rights that you are not entitled to under the law.  In fact, the law may actually work against your interests.

Fortunately, proper estate planning can be used to help you secure the rights that will be important to you and your family.


Massachusetts Does Not Recognize Common Law Marriages

There are only a handful of states (and D.C.) where common law marriages are recognized, and Massachusetts is not one of them. So, for Massachusetts couples wanting to share their lives (and their living areas) with each other, but without entering into a formal marriage, the options are somewhat limited.

If you’re living together in a committed relationship, a cohabitation agreement can provide an understanding for both parties–as well as their legal heirs–about what is being brought into a relationship, and what will happen if the relationship comes to an end. It’s something like a prenuptial agreement, but without the “nuptial” part in it since there’s no formal marriage recognized by the state.

Documenting Your Wishes

Nobody wants to think about death. And yet the more a person has – in terms of both assets and tangible items – the more important it is to get this process rolling.

For instance, the music legend Prince died suddenly at the age of 57, which is the same age David Bowie was when he drew up his will. While neither man lived in Massachusetts or had a cohabitation agreement with someone else, Bowie planned for the future, while Prince did not.

Prince had a compound called “Paisley Park” in suburban Minneapolis. The current status of Paisley Park itself is unknown because Prince died without any directions about what should be done with it after his death. Bowie, on the other hand, left a specific set of instructions that ensured an orderly transfer of his assets to the parties he chose.

Protect Your “Paisley Park”

Each of us has an equivalent of Paisley Park, whether we have a name for it or not. Perhaps someone else is moving into your household. If this is the case, whether or not they continue to live there after your death should be set forth in writing. Likewise, if joint funds are used to purchase and/or furnish your property, the percentage of ownership by each party should be set forth in writing, and a cohabitation agreement is a recognized way to accomplish this.

The percentage of ownership of a property can either be split equally, as in a joint tenancy agreement, or unequally, in the case of a tenancy in common. Either way, an important step is to set forth a valuation procedure for the property itself. A cohabitation agreement can outline an agreed-upon method for determining the property’s value in the event that the property needs to be sold for liquidation purposes. Since a house or other living unit cannot be physically separated into component parts, there needs to be an agreed-upon procedure for determining what the value of the property is.

What if there is a Break-Up?

Not all relationships end with the death of one of the parties. Situations change, and the best time to anticipate this is before it happens, not after the fact.

In some cases, couples may believe that everything is clear, when if fact this may not be the case.  For example, what if one person owns a house in which the couple live, but the other person contributes to the mortgage payments for the house, as well as for maintenance and upkeep?  The person owning the house may be under the belief that because he/she owns the house, the other person is not entitled to anything if there is a split, but this in fact may not be the case.

Cohabitation agreements can contain specific language regarding who owns what, both before and after the cohabitation begins. To ignore addressing this asset issue is foolish because it could lead to lengthy and costly court battles, particularly where there are significant assets involved.

Elements to Consider

The rights of a person to inherit property from someone who dies intestate, or without a will, extend to those who are spouses, parents, children, or siblings of the deceased. If a marriage does not occur, though, a person will not be able to inherit from someone they are not related to by blood or by adoption, unless there is a will or trust that provides for an inheritance. A trust agreement can be used for establishing these rights and a cohabitation agreement can also serve this purpose.

The proceeds of life insurance policies, retirement accounts, and other financial assets must also be taken into consideration. A cohabitation agreement can set forth the wishes of one or both parties in this regard, it’s equally important to change your beneficiary designations on life insurance policies, IRAs, 401(k) accounts and annuities to make sure you’ve designated the person to whom you want these assets to pass and ensure that these items are disposed of in an orderly fashion. Conflicts are less likely to arise, and messy probate battles are more likely to be avoided, where both parties make it clear what their intentions are in advance.

Massachusetts Law Requires Some Navigating

The seafaring traditions of the Bay State go back centuries, and a boat is a helpful metaphor for a cohabitation agreement.

People who agree to bind their fortunes together should know what is to become of the boat once the journey is over. Who gets the boat, and how much it is worth, may not be good questions to settle after the voyage is underway. In fact, a squabble over these matters could very well prevent the smoothest possible sailing on what could be some very rough waves.

Reaching an agreement about these issues beforehand makes sense, and a cohabitation agreement gives both parties peace of mind for the journey, wherever it might ultimately lead them.

Take Advantage of our Free Family Legal Planning Session

Contact us today to discuss the issues relating to cohabitation agreements to help you decide if entering into one is the right decision for you.  During our free Family Legal Planning session, we’ll get to know you and learn about your situation and wishes for asset matters.  Then, we can advise you as to the cost and types of planning that we believe will meet your needs.

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