Legal and Financial Considerations for Nontraditional Relationships part 2

 

Last night I attended the monthly meeting of the Women’s Estate Planning Council , and as usual – we had a very informative speaker.  Bradley L. Kolstoe  presented “Savvy Social Security Planning,” about understanding the importance of Social Security.  I have to say that I would use the term “understanding” from my perspective here rather loosely.  It reminds me of P.L. Travers’, the author of Mary Poppins (yes, she’s still around – she recently battled Voldemort at the London Olympics!) description of the term as “standing under.”  There was a downpour of information and a lot of  it rolled right off me!  Luckily, we can visit Brad’s website here, and it has several helpful articles

So what about Social Security and nontraditional relationships?  Well, social security retirement is the biggest federal benefit regime and it only applies to individuals and married couples (I’m leaving out minor children and others intentionally here).  What are the implications for couples who are co-habiting but not in a marital relationship?  Huge!  I think it is part of the many details that couples who could otherwise be married typically overlook.  I’m talking here about opposite sex couples, because federal benefits only apply to them as long as the Defense of Marriage Act Defense of Marriage Act (DOMA, Pub.L. 104-199, 110 Stat. 2419, enacted September 21, 1996, 1 U.S.C. § 7 and 28 U.S.C. § 1738C) is in force – which may not be much longer. . .

So what’s the point I’m making here?  I recently published a book review in The Colorado Lawyer  of Professor Cynthia Grant Bowman’s 2010 Oxford University book “Unmarried Couples, Law and Public Policy.”  This book covers the marriage debate (cohabitation), but not the “marriage equality” (for same sex couples) debate.  With the decreasing number of people getting married, and divorces among folks over 50 going up considerably ,retirement planning and factoring in social security benefits are getting more complicated all the time!  The bigger issue that concerns me is for the unmarried couples who tend to underestimate the value of social security to financial stability in retirement years.

As Bowman points out in her book, cohabitation in the U.S. is problematic at best.  Unlike nearly all European countries, which have adopted some national laws  aimed at addressing the cohabitation phenomenon, the U.S. is still “on the fence” about some pretty basic issues.  What we have in this country, is a patchwork crazy quilt of local, sometimes statewide recognition of certain limited rights in particular states.  There is no standard for these rights, they are typically determined on a case-by-case basis, based on particular facts of each case brought to a court’s attention.  Cohabiting couples either have to forge their own agreements about important financial and legal considerations, or see what happens as a result of legal action.  There is no legal proceeding for “termination of cohabitation,” so the type of legal rights sought to be enforced really depends on the particular couple.

This can be a big problem, particularly for those vulnerable persons in a cohabiting relationship – who tend to be (but this is changing to some extent) women and children.  Bowman recommends providing legal remedies to cohabitants including:

(1) domestic partners who have been together two years or more and have a child together should be treated as though they were married;

(2) the ability to “opt out” contractually of these obligations should be easily available for couples not wishing to be treated as married; and

(3) a system for registration as domestic partners should be provided, accompanied by all the benefits and burdens of marriage unless the partners opt out with their own contractual arrangement delimiting their rights.

Bowman at 223.  I think as a country we might be some distance away  from providing such protections to cohabitants, so in the meantime it’s best to protect yourself by knowing what rights you have and what rights you don’t have when you are in a cohabiting relationship.  Bottom line is – don’t make assumptions based on your lifestyle.  Just because you feel like you’re married doesn’t mean the law won’t treat you like “legal strangers!”  Make sure you know what your future looks like if you are in an unmarried (cohabiting) relationship.

 ©Barbara Cashman, LLC   www.DenverElderLaw.org

Legal and Financial Considerations for Nontraditional Relationships

 

 

This post is the first of a series about estate planning and unmarried couples.  By “unmarried couples,” I mean both heterosexual couples who choose not to marry and same sex couples whose unions or marriages are recognized by some states.

Being in a nontraditional relationship presents a number of challenges about which people need to be aware.  These challenges vary from state to state but tend to be uniform in the federal context (IRS, social security, veteran’s benefits).  The legal challenges stem from the fact that (unless there is marriage, civil union or in Colorado – a designated beneficiaries agreement) the couple are legal strangers to each other, with limited or to-be-determined rights regarding the other or their relationship.

Some financial difficulties include:

1. You have to file your taxes as head of your household, or as a single individual.

2. The state you live in may not provide a divorce-like (palimony or settlement) procedure that gives you your equitable share of assets.

3. You and your partner do not get each other’s Social Security benefits.

4. You may have to sell your house to get long term care benefits under Medicaid. (This is changing, read  this for more information.)

5. You must designate your partner as the person to make your decisions if that is what you would like to see happen (by using a medical or financial power of attorney). Otherwise, the state you live in may default to a blood relative to make those decisions.  See this news release from the CMS website regarding Medicare’s enforcement of equal visitation.

6. You will want to carefully consider creating a will to get around your state’s intestacy laws in the event they do not recognize your union.  Keep in mind that Colorado is one of ten states that recognizes common law marriage, and unmarried couples can execute a designated beneficiaries agreement

7. You are not eligible to receive the transfer of your partner’s exemption like married couples are.

For more information about the financial difficulties, check out Erik Carter’s article “In a Nontraditional Relationship? Beware These 7 Financial Pitfalls,” in Forbes.

The lack of legal and financial protections apply to same sex couples along with unmarried couples who could otherwise get married but have chosen not to get married.  Keep in mind that your relationship may seem like a marital one, but just because you behave the same way as a married couple, the law will not treat your relationship with as a marital relationship.  It’s best to know these things up front and not be surprised by them!