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Unmarried and Same-Sex Couples

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Traditionally, unmarried and same-sex couples have been treated differently under the law than married couples. However, many of the legal protections, rights and benefits automatically conferred to married couples are increasingly available to unmarried and same-sex couples with respect to property (e.g., ownership and inheritance), parenting (e.g., automatic rights), medical (hospital visitation, health care proxy, insurance) and more.

In some jurisdictions, state-level rights (e.g., state tax benefits) are being conferred via domestic partnership registries and civil unions, and a handful of states are even issuing same-sex couples marriage licenses. Heterosexual and same-sex couples who cannot or do not wish to be married may be able to contract (see sidebar) rights similar to married persons. It is important to consult a skilled family attorney to determine the legal status of your relationship and to make sure your rights and interests are protected accordingly.

Unmarried Cohabitation

According to the U.S. Census Bureau, 7.5 million opposite-sex unmarried couples reported living together in 2010, a 13 percent increase over the prior year. Another 620,000 same-sex couples reported living together. Some "unmarried" couples may actually have a common law marriage, which is a legal marriage without a license and marriage ceremony.

Tax Issues

Proper tax planning can have significant financial implications for unmarried and same-sex couples. The following are some considerations for unmarried and same-sex couples:

  • Inheriting IRA/401K. Non-spouse beneficiaries may not be able to roll an inherited account into their own. Ask your attorney about taking required minimum distributions annually instead.
  • IRA Withdrawals. Certain allowances for early withdrawals (e.g., education expenses) are free for spouses; otherwise there is a 10 percent penalty.
  • Estate and Gift Tax. The unlimited marital deduction for inherited property only applies to legally recognized (by the IRS) spouses. Ask your attorney for help minimizing potential estate taxes.

Tax laws are always changing so it is best to consult an attorney for more information.

Common Law Marriage. The exact requirements for common law marriage vary by state but generally require a significant period of cohabitation and an intention and agreement to be married as shown by "holding out" (e.g., filing joint tax returns) as husband and wife.

While only a minority of states allow common law marriage, once it is legally established in one of those states the U.S. Constitution's full faith and credit clause compels all 50 states to recognize the marriage. Common law marriage can only be terminated by divorce or death. Common law marriage is not typically associated with same-sex marriages, but as more and more states legalize same-sex marriage it is a good idea to check with an attorney to be sure.

Cohabitation and Other Agreements. A cohabitation agreement is a great tool for unmarried and same-sex couples to establish legal rights and responsibilities (e.g., sharing income, managing household, property ownership, medical proxy) with respect to their relationship. To avoid common law marriage, an attorney can execute a cohabitation agreement to serve as evidence of your intention not to be legally married. Unmarried and same-sex couples who are living together should speak to an attorney to learn more about how cohabitation agreements and other contractual agreements can provide them with their desired legal rights and protections.

Contracting Your Rights

Many of the rights and protections that are not automatically conferred to unmarried and same-sex partners may be achieved by contractual agreement. Some of the key legal documents include:

  • Co-Parenting Agreement – if second-parent adoption is not available, a co-parenting agreement is likely the best way to establish legal parental rights and responsibilities for the non-biological/co-parent.
  • Domestic Partnership Agreement – similar to a cohabitation agreement, a domestic partnership agreement sets up legal rights and responsibilities for a couple that wishes to form a long-term committed relationship.
  • Donor Agreements – the purpose is to identify the role and responsibilities (if any) the donor will have with the child.
  • Durable Power of Attorney for Finances – with this document you can give your partner some or all power to manage your finances should you become incapacitated.
  • Health Care Proxy – with this document you can designate your partner to make all medical decisions on your behalf.
  • Hospital Visitation Authorization – this document is necessary in hospitals that restrict patients' visitors to biological and legal family members.
  • Last Will and Testament – without a legally executed will your partner could be left with nothing and even lose property he or she contributed to.
  • Living Will – this document will ensure that your wishes with respect to medical care are carried out if you become incapacitated.

Even small mistakes could render some of these contracts invalid, and there is no guarantee some or all of the provisions of the contracts will be legally recognized. Therefore, it is imperative that you consult an experienced attorney for help.

Same-Sex Marriage

Each state has the power to legalize same-sex marriages within its borders and/or recognize same-sex marriages established in other states. On the other hand, the federal government only recognizes marriage between a man and a woman. Accordingly, while (in some states) same-sex married couples enjoy the same state-level benefits and responsibilities of marriage, their marital status does not entitle them to other protections given to married couples such as social security and pension benefits.

So far, same-sex marriages are only legal in five states (Massachusetts, Connecticut, Iowa, New Hampshire and Vermont) and the District of Columbia. Additionally, a few states (Maryland, Rhode Island and New York) that do not issue same-sex marriage licenses do recognize same-sex marriages legally established elsewhere. For the most current information, contact a family lawyer.

Domestic Partnerships

A handful of states that do not provide same-sex marriage licenses allow same-sex couples access to state-level spousal rights and responsibilities via domestic partnerships. The laws can vary tremendously. In some states, domestic partnerships give couples the right to enjoy most of the state-level benefits of marriage (e.g., California, Oregon, Nevada and Washington). New Jersey, via civil unions, gives same-sex couples similarly broad rights. A few other states have also passed domestic partnership laws (e.g., Hawaii, Maine, and Wisconsin) but do not confer these couples as many rights. Speak to an attorney to learn more about the laws in your state.

Family Lawyers

If you are part of an unmarried or same-sex relationship, you may wish to consult a family lawyer to make sure both partners' interests are protected. It is a good idea to prepare a list of questions in advance of your meeting. Some of the issues you might want to talk about are:

  • Estate and income taxes (see sidebar)
  • Wrongful death benefits for surviving partner and children
  • Family, bereavement or sick leave
  • Judicial protections and immunities (e.g., spousal privilege)
  • Immigration (if applicable)
  • Disability
  • Federal government benefits (e.g., social security, veterans benefits)
  • Nursing homes
  • Pensions
  • Health insurance

Don't wait until it is too late. Contact a family law attorney today.

* Human Rights Campaign

Did You Know?

More than one-quarter of all Americans work for an employer who offers health benefits to domestic partners.