Living Together: Legal & Financial F.A.Q.

  1. What are the legal implications of not marrying my partner? How can I make sure we have the same protections as married people?
  2. My partner recently died or left me. What are my rights?
  3. Can you help me find a lawyer who can help me draft the right documents to protect me/us?
  4. When my partner and I rent a car for a long trip, we like to list both of us as drivers so we can take turns driving. We usually have to pay extra to list a second driver on the rental policy, but married couples don’t have to pay this surcharge. Is there anything we can do?

Answers

1. What are the legal implications of not marrying my partner? How can I make sure we have the same protections as married people?

Many (though not all) of the rights, privileges, and protections that married couples receive are also available to people in unmarried relationships, although for unmarried relationships they don’t happen automatically. People in unmarried relationships can work with a lawyer to prepare the documents listed below, or use one of several excellent do-it-yourself legal guides (our favorites are the do-it-yourself legal guides put out by Nolo Press, Living Together: A Legal Guide for Unmarried Couples and A Legal Guide for Lesbian and Gay Couples. Many lawyers advise people in unmarried relationships to prepare (explanations for each are below):

  1. A durable power of attorney for healthcare (or healthcare proxy)
  2. A living together (or domestic partnership) agreement
  3. A will
  4. A durable power of attorney for financial management

The durable power of attorney for healthcare gives the designated person (your partner, if you choose) authority to make health care decisions if one is unable to do so. You can download the form for your state from the Partnership for Caring.

The living together agreement is basically a contract that delineates how you’ll handle property and assets while you’re together (What’s OK to charge on the joint credit card? Will you divide the grocery bills 50-50, or according to your incomes?), and what would happen if the relationship were to end. Since divorce laws don’t apply when unmarried couples break up, it can be an important form of protection and provide guidance if the couple winds up in court.

A will is important since if an unmarried partner dies without a will, the survivor will inherit nothing. Inheritance laws often penalize unmarried couples, sometimes in ways it is impossible to avoid. Some say that even if you’re young or poor, one of the most valuable purposes of a will is that it allows you to name an executor, the person who will empty your drawers and find your old love letters. If you don’t want that task falling to your mom or your adult children, you need a will.

The durable power of attorney for financial management gives the designated person (in this case, the partner) the authority to manage your property and finances if you are unable to do so.

You can also find more related resources on the Legal and Financial Issues Books and Links page.

Note: We are not attorneys! The information above represents our best understanding, but we encourage you to seek the advice of a lawyer on important matters.

2. My partner recently died or left me. What are my rights?

It all depends. These are the kinds of things that can make it easier for partners to make legal claims after a breakup or the death of a partner:

  • you and your partner had a written or oral contract about property or assets (and your relationship has now ended)
  • your partner named you in his will (and has now died)
  • you owned property (a car, a house, etc.) in both your names
  • you were registered as domestic partners registered as domestic partners in your state or municipality
  • you lived in a state that recognizes common law marriage, and you can prove you met the criteria to establish that you had a common law marriage

If you had none of those things, you may be out of luck — which sometimes leaves people in situations that feel very unfair. Since we are not attorneys, we recommend you seek the advice of a lawyer in your state to learn more about your options (see #3 below).

At Unmarried Equality, we hear some terribly sad stories from people who found themselves in awful situations when their unmarried relationship ended or one partner died. Most of these people had not taken steps to protect themselves legally while things were going well, and some simply assumed they would have rights and legal protections. The truth is, it’s critical for unmarried couples to have wills and cohabitation agreements as outlined above while things are going well in their relationships, since without them the legal system often refuses to recognize our relationships. UE advocates for laws and policies to be updated to recognize that families are defined by financial and emotional interdependency, not just by blood and marriage. Until that happens, we need to protect ourselves.

3. Can you help me find a lawyer who can help me draft the right documents to protect me/us?

At some point in the not-too-distant future, we hope to create a referral section of this website, where people can post information about professionals they’ve worked with (like lawyers and accountants) who are particularly friendly to and knowledgeable about unmarried issues. In the meantime, though, a few ideas for how to find helpful professionals:

  • Ask friends for recommendations.
  • The American Bar Association’s referral service and advice on choosing a lawyer. You should look for lawyers who specialize in family law.
  • Even if you’re heterosexual, consider seeking out a lawyer who specializes in working with gay, lesbian, and bisexual clients. Since same-sex couples haven’t historically been able to marry, lawyers who do a lot of work within these communities generally have lots of experience setting up whatever legal protections are available. You can find lawyers who focus on the GLBT community by looking at the ads in a local GLBT newspaper, or by calling a GLBT legal organization (like GLAD, Lambda Legal, or the National Center for Lesbian Rights) and asking for a referral.
  • If all else fails, try the phone book. Don’t be afraid to ask lots of questions about experience and fees (you may need to pay for an initial consultation), be assertive, and trust your gut about whether someone is a good match for you.

4. When my partner and I rent a car for a long trip, we like to list both of us as drivers so we can take turns driving. We usually have to pay extra to list a second driver on the rental policy, but married couples don’t have to pay this surcharge. Is there anything we can do?

Yes, renting cars is still one area where discrimination on the basis of marital status is still alive and well. But there are at least a few companies that are friendly to domestic partners:

  • Avis: Avis has the best domestic partner policy of any car rental company. They’ll allow a second driver (same-sex or different-sex) to be on your rental agreement for no additional charge, as long as your driver’s licenses list the same home address.
  • Hertz: A second driver can be added for no additional charge if both drivers are AAA members. You don’t have to be domestic partners — you could list your friend, your mother, or anyone else.
  • Enterprise: At least in some states, a domestic partner can be added as a second driver for free if you share the same auto insurance policy.
  • National: For Emerald Club members (National’s “frequent driver” program), an immediate family member can be a second driver for free. Their definition of immediate family members includes common law spouses and same-sex domestic partner who live at the same address as the renter. This policy does not appear to extend to different-sex domestic partners.

Sometimes friendly desk clerks will wink at renters and say, “If you tell me you’re married, there’s no way for me to check.” Do not lie about your marital status to save a few bucks. If you got into an accident while driving the car, your little white lie could have ugly, expensive legal implications. It’s not worth it. For the same reason, don’t say you are common law spouses unless you are absolutely sure you meet the criteria explained in our Common Law Marriage Fact Sheet, and are prepared to be common law married permanently (until you get a legal divorce). Like regular civil marriage, you can’t flip your marital status back and forth like a switch — married today to rent a car, unmarried tomorrow.

Most other car rental companies handle the domestic partner issue in one of two ways. Some charge all second drivers (spouses, domestic partners, and anyone else) the same surcharge. It’s not fun to pay, but at least it’s not discriminatory. Others allow legal spouses to be a second driver for free, but charge for domestic partners. If you must rent from one of these companies, be sure to politely express your frustration, and let them know that many of their competitors have changed their policies to treat domestic partners the same as spouses. If they hear from enough of us, perhaps they’ll be motivated to make the roads a little friendlier for unmarrieds.

Know other domestic-partner-friendly car rental companies? Email them to us and we’ll keep this information updated.

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