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Law Offices of Ronald W. Rutz
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October 18, 2004: Go-habitation Guidelines

Q. My wealthy 72 year-old mother is going to shack up with a poor 51 year-old widower. Is there anything we kids can do?

A. Apparently there are just under five million unmarried but cohabitating couples in the United States, with approximately 275,000 such pairs with "partners" over the age of 65. This column is not designed to reflect on the moral, social, political, or even financial ramifications of such couplings. But letÕs look at the legal documents that need to be considered in any such relationship. (Many points will also be applicable to second marriages.)

First, some type of cohabitation agreement needs to be done that at the very least sets up the presumption of non-marriage as well as touching on such legal subjects as property ownership, inheritance rights, claims to retirement benefits, etc.

The document could be as non-complicated as a short handwritten statement signed and dated by each person, or in your momÕs case I would prefer a document approaching the recommended elements of a "marital agreement," including full disclosure of assets and income, waiver of various statutory rights and claims if later it is judged that a common law marriage had occurred, and the involvement of two attorneys.

Regardless of whether a cohabitation agreement was executed or not, property ownership needs to be reviewed and a plan put in place. Anything titled in both names reverts to the other if held in joint tenancy or if held in tenants in common, is owned one-half by each. Beneficiary designations, such as with an insurance policy, IRA, annuity, etc. mean that the proceeds will flow to the named recipient. Thus asset distribution needs to be coordinated with the intent of both parties and maintained thereafter. Otherwise the expectations of each person plus their families can go terribly awry.

If possible assets should be held in separate names and the otherÕs name added only when part or all of an asset is intended to go to that person.

A Will is vital. If no Will is present, one needs to be done to clarify the intent of the maker concerning the nature of the relationship, the proper property distribution, and naming the fiduciaries (such as executers, trustees, etc.). If a Will (or a Living Trust), was in existence prior to the commencement of the living arrangement, I would suggest doing a codicil to the Will (or an amendment to the Trust) to show the intent of the maker that the original document still represents his or her feelings.

Another essential document is the durable power of attorney that reflects your momÕs wishes as to whom she wants to make medical decisions for her and gives an agent the authority to step forward and help her in other areas. (Remember that I want people to sign four original all-encompassing documents with at least one back-up agent designated in addition to the principal agent.)

If the intent is to merely cohabit, then concerns about Colorado common- law marriage needs to be spotlighted and its corresponding legal traps avoided. There is no easy test that triggers the "blessed event" (unless both parties announce the status). So forget what you heard (or said) at the bar about a certain time requirement needing to pass before the "marriage" is deemed to occur, the need for consummation, having of children, or even a signed statement. In other states one or more of such events might cause that stateÕs common law marriage statute to trigger. But although all of these factors certainly would be considered and weighed in Colorado, the legal test is the intent of the parties as determined by how they hold themselves out to the public. So all factors are placed on the "for" and "against" sides of the scales of justice (with certain matters possibly given more weight by the trier of fact) and then it is seen which way, if any, the scales tilt.

Thus, encourage your mom to maintain her own identity as a single person who is merely living with another, even in socially embarrassing situations where for that moment it might have been easier to express marriage.

There are many more topics to cover but encourage your mom and her future partner to schedule a meeting with a lawyer to review the legalities involved and each person probably should use separate attorneys. Otherwise, the consequences can be devastating for everyone involved.

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