Living With Your Significant Other? Think About a Cohabitation Agreement

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My estate planning colleagues regularly ask me about the legal rights and responsibilities between cohabiting adults. Since more and more people are living together, and even having children together, without getting married, this issue will continue to increase in important. Before you begin cohabitating with someone, it is important to understand your rights and responsibilities under the law, and to understand the additional legal rights you could obtain by properly drafted Cohabitation Agreements or other legal documents.

I'm moving in with my boyfriend and I want to make sure I have rights to the property we acquire during the relationship. Do I need a cohabitation agreement? Good idea. In Minnesota, a cohabitation agreement can be entered into as follows: "if sexual relations between the parties are contemplated, a contract between a man and a women who are living together in this state out of wedlock, or about to commence living together in this state out of wedlock, is enforceable as to terms concerning the property and financial relations of the parties only if:

•1. The contract is written and signed by the parties, and

•2. Enforcement is sought after termination of the relationship.

Unless the individuals have executed a contract complying with these provisions, Minnesota courts are without jurisdiction to hear and must dismiss as contrary to public policy any claim by an individual to the earnings or property of another individual if the claim is based on the fact that the individuals lived together in contemplation of sexual relations and out of wedlock within or without this state. A cohabitation agreement is very important for parties who have lived together for a long time and desire to continue living together but do not wish to get married. There are provisions that can be drafted into a cohabitation agreement that allow for a "safety net" to the less financially secure party if the relationship sours and ends.

Interestingly, this statute has not been amended since the passage of the same sex marriage laws in Minnesota, so it is yet to be determined whether these laws could also apply to a same sex unmarried couple.

My girlfriend will not sign a cohabitation agreement, but I still want to live with her. How can I protect myself financially? Be very careful and deliberate with your finances. Even without a cohabitation agreement, there are other ways to protect you financially, such as making sure that both parties' names are on deeds to any jointly owned real estate, titling vehicles in both parties' names, etc. Under Minnesota law, without a cohabitation agreement, parties living together who are not married run the risk of unintended consequences if the relationship ends. For example, if the parties agree that one party will pay for the mortgage on the homestead which is in her name alone and the other party will pay all of the bills related to electricity, heat, telephone expenses, television, etc., at the end of the relationship, the person who paid for those personal expenses has nothing to show for it, where the person who paid money towards the mortgage has equity in a homestead that is of some value. That creates an "inequitable" result, but a result that is required under the law without a properly executed cohabitation agreement to the contrary.

There are other ways, of course, to protect a cohabiting party in the event of the other's death, such as provisions in a will or other validly executed legal instruments (transfer on death deeds, etc.). However, typically, those other instruments can be changed or modified at will and generally cannot be enforced if the person making the will changes his or her mind.

I've been living with my girlfriend for ten years. Are we married under common law and is my girlfriend entitled to anything if we split? No. In Minnesota, there is no such thing as common-law marriage. For a Minnesota marriage to be valid there must be a license issued by a governmental agency, solemnization of the marriage in the presence of witnesses, and a marriage certificate filed with the appropriate governmental entity. Without that, there is no right to the assets or earnings of the person you are cohabiting with unless a properly executed Cohabitation Agreement is made.

But we have lived together for decades and we have minor children together. Don't I get something for that? No. Simply having children with another person, if not married to that person, does not create any additional rights or entitlements to the other person's property or earnings--other than child support-related issues.

Andrew M. Tatge is a partner and chair of the Family Law and Divorce Practice Group at Gislason & Hunter LLP (www.gislason.com). He regularly represents farmers, business owners, professionals, and other high earning and high net worth individuals (or their spouses) in divorce and related actions. Andrew can be reached at atatge@gislason.com or (507) 387-1115. This information is general in nature and should not be construed as tax or legal advice.

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