Property Rights of Unmarried Couples in Maryland

Maryland does not allow the creation of a �common law� marriage, a relationship in which a couple lives together but have not participated in a lawful ceremony. Unlike some other states, in Maryland a couple cannot acquire marital rights and responsibilities by living together for a particular period of time. You do not need legal action to end such a relationship, if it was created in Maryland.

However, Maryland does recognize as valid, common law marriages created in other states if the legal requirements of those states have been met. As a result, legal action is needed to dissolve legal �common law� marriages performed in other states and foreign countries in compliance with their licensing and ceremonial regulations. The courts are available for determining the rights of parties now living in Maryland. 

As long as a couple lives together as husband and wife, the question of validity of their marriage is unlikely to arise. However, for purposes of inheritance or the benefits of pension plans or social security, a valid marriage is required.

Legal Rights of Unmarried People Living Together

Cohabitation generally means two unmarried people in a relationship living together.  It may be a casual, temporary relationship, an experiment in living together preceding marriage, or a more permanent alternative to marriage.  

Whatever the degree of emotional commitment between the cohabitants, the United States Census Bureau has reported a dramatic increase in the number of cohabitants during the past three decades.  The number of cohabitants tripled from 1970 to 1980, jumping from 523,000 to 1,560,000.  From 1980 to 1990, the number went from 1,589,000 to 2,856,000.   The total number of unmarried cohabitants was placed at  5,475,768, including same sex couples.  This was a 72% increase over the last decade.  The increase in unmarried couples in Maryland was 46.9%.

Although not entitled under the law to the protections that legally married couples have concerning shared property and rights of support, unmarried cohabitants do have legal protections as individuals and can take measures to safeguard their rights.  Furthermore, there is a slowly developing trend in the United States to lessen the gap between the rights and remedies granted to married couples and those given to unmarried cohabitants.  

Ownership of Real Property

Unmarried cohabitants' rights regarding the ownership of real property are determined by how assets are titled.  Partners may choose to own property as joint tenants or tenants in common.   Property titled as either a joint tenancy or a tenancy in common is a form of ownership in which two or more persons have an undivided interest in the real property.  The principal difference between a joint tenancy and a tenancy in common is that partners holding property as joint tenants have a right of survivorship, whereas partners holding property as tenants in common do not.[5]  Thus, in a joint tenancy, when one partner dies, sole ownership of the real property automatically passes to the surviving partner.  A tenant in common, on the other hand, can transfer their property interest via a will; or if the tenant in common dies intestate, their real property interest will pass under the statute of descent.

Under Maryland law, there is a presumption against joint tenancy.  This means that documents, such as deeds, must expressly provide that the real property is to be owned as a joint tenancy for it to be legally recognized as such.  Therefore, if purchasing real property with the intent of  joint tenant ownership, explicit language indicating that intent is necessary.  The deed must indicate ownership �as joint tenants.�  In the absence of this language, ownership will be assumed to be a tenancy in common

Death Benefits

If one unmarried cohabitant dies, is the surviving cohabitant entitled to any benefits?  The answer, which differs depending on the controlling law, is especially crucial to a dependent surviving cohabitant who has no independent financial means.

Maryland Workers' Compensation Act

When a person dies from an injury that arose out of and in the course of his or her employment, that employee's survivors are entitled to workers' compensation benefits in Maryland if the act covers the particular situation.  The sole standard for determining survivor's benefits under the Maryland Workers' Compensation Act is dependency.[1]  An unmarried cohabitant who can show that he or she was wholly or partly dependent on the deceased employee at the time of the injury resulting in death will receive benefits. 

A dependent is one who was receiving in whole or in part the �reasonable necessities of life� from a worker at the time of the work-related injury causing the workers' death.  The worker must have actually supported the survivor, and the survivor must have in fact relied upon the worker's earnings for his or her livelihood, in whole or in part. The Workers' Compensation Commission, in accordance with the facts in each case, determines whether a survivor is dependent.

Worker compensation claims by survivors are generally of two types.  First, dependents claim an award of permanent total or permanent partial disability compensation left unpaid at the death of the employee.  In such a case, the employee has died from causes not related to his or her compensable injury.  An unmarried cohabitant would not be able to take this award unless he or she was designated as the recipient in the deceased cohabitant's will.  However, the children of unmarried cohabitants may have rights of inheritance.  (See Children of Unmarried Cohabitants for a discussion of a child's rights to death benefits and inheritance.)

The second type of claim is the case where the death was the result of and occurred within seven years of the compensable work-related injury.  An unmarried cohabitant would receive death benefits in this situation if he or she was a dependent of the deceased.

Federal Statutes

There is a general reluctance in federal statutes, e.g., the Death on the High Seas Act, the Jones Act, the Longshoremen's and Harbor Workers' Compensation Act and the Veterans' Administration Act, to grant death benefits to a surviving unmarried cohabitant even if one cohabitant believed in good faith that he or she was validly married.  The statutes usually refer to surviving �widows� and �widowers,� terms that have been construed by the courts to exclude unmarried cohabitants.  Refer to the appropriate federal law that covers the specific situation to see if benefits are available.

If the employee cohabitant dies in a jurisdiction that, unlike Maryland, recognizes common-law marriage, the surviving cohabitant may be able to obtain federal benefits.

Social Security

An unmarried cohabitant is not entitled to death benefits payable under the Social Security Act, unless he or she qualifies as a common-law spouse in a state that recognizes common-law marriage.  The law of the state where the insured was domiciled at the time of death governs. Therefore, in Maryland the surviving member of a gay or lesbian couple is not entitled to death benefits.

Insurance

If an automobile liability insurance policy contains a �household exclusion� clause relieving the insurance carrier of liability to members of the insured's �family� or �household� for their injuries caused by the insured, an unmarried cohabitant is not excluded.  The Maryland Court of Special Appeals has determined that an unmarried cohabitant is a residing relative when that person abandons his or her home, puts his or her belongings into storage, lives in a close family environment and shares meals together with other household members.[2]

On the other hand, if automobile liability insurance coverage is extended in the policy to persons living in the same household, unmarried cohabitants are covered.  If the policy only covers �spouses,� then unmarried cohabitants are not protected.  Read the automobile insurance policy carefully to see what language is used to designate who is excluded from or included in coverage.

With life insurance, one member of a heterosexual or gay/lesbian couple is free to designate his or her partner as a beneficiary and to change this designation at a later date.

Wills and Inheritance

An unmarried cohabitant may leave property to his or her surviving partner in a will. He or she may also revoke this devise or bequest later.  In the absence of a will, an unmarried cohabitant will not receive any of the property left by his or her deceased partner.  This is also true for same-sex couples.

If the unmarried partner has not written a will, state law governs the division of his or her property.  Any part of the estate of the deceased partner that is not disposed of by will shall be distributed to legal relatives of the decedent.

Whether or not there is a will, an unmarried cohabitant may want to prepare a Letter of Instruction.  The purpose of the Letter of Instruction is to guide the family on matters not covered by the will.  Though the Letter cannot be legally enforced, it can be used to provide the surviving partner with the information needed to close the deceased partner's affairs.  The Letter may include directions for funeral arrangements and indicate family and friends to be notified concerning the death.  Additionally, the Letter may include locations of important documents concerning life insurance, bank accounts, and other personal papers.

Taxes

The full tax ramifications of living together as opposed to marriage are far too complex to be examined in detail here.  Additionally, they are likely to change frequently.  At the very least, unmarried cohabitants should know that, unlike married couples, they can not file joint tax returns.  A simple comparative check of each year's tax tables for unmarried persons and married couples will reveal the amount of money saved in individual situations. For more information, contact the Internal Revenue Service at www.irs.gov.

[1]  MD. Code Ann., Lab. & Empl. � 9-678 (1991).

[2] Willis v. Allstate Insurance Company, 88 Md. App. 21,  591 A.2d 896 (1991).

Source: This section is drawn from the booklet entitled "Legal Rights of Unmarried Cohabitants in Maryland" produced by and available from The Women's Law Center

 

 

Frequently asked questions to help unmarried couples determine who owns what.

What's Below:

My partner and I don't own much property. Do we need a written contract covering who owns what?

If you haven't been together long and don't own much, it's really not necessary. But the longer you live together, the more important it

  • is to prepare a written contract making it clear who owns what -- especially if you begin to accumulate a lot of property. Otherwise,
  • you might face a serious (and potentially expensive) battle if you split up and can't agree on how to divide what you've acquired. And when things are good, taking the time to draft a well-thought-out contract helps you clarify your intentions.

Another way to deal with owning property together is to use a joint purchase agreement for individual items as you buy them. See our Sample Agreement below.

In addition, we also offer do-it-yourself Living Together Agreements which contain instructions and forms necessary to create various types of agreements. Please see our affiliate site: SmartLegalForms for more information on these products.

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My partner and I are buying a house. Do we need a written property agreement?

It's particularly important to make a written property agreement if you buy a house together; the large financial and emotional commitments involved are good reasons to take extra care with your plans. Your contract should cover at least four major areas:

  • How much of the house does each of you own? If it's not 50-50, is there a way for the person who owns less than half to increase his share -- for example, by fixing up the house or making a larger share of the mortgage payment?
  • How is title (ownership) to be listed on the deed? One choice is as "joint tenants with rights of survivorship," meaning that when one of you dies, the other automatically inherits the whole house. Another option is "tenants in common," meaning that when one of you dies, that share of the house goes to whomever is named in a will or trust, or goes to blood relatives if the deceased partner left no estate plan.
  • What happens to the house if you break up? Will one of you have the first right to stay in the house (perhaps to care for a young child) and buy the other out, or will the house be sold and the proceeds divided?
  • If one of you has a buyout right, how will the house be appraised and how long will the buyout take?
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My partner makes a lot more money than I do. Should our property agreements cover who is entitled to her income and the items we purchase with it?

Absolutely. Although each person starts out owning all of his or her job-related income, many states allow this to be changed by an oral contract or even by a contract implied from the circumstances of how you live. These types of contracts are ripe for misunderstanding. For example, absent a written agreement stating whether income will be shared or kept separate, one partner might falsely claim the other promised to split his income 50-50. Although this can be tough to prove in court, the very fact that a lawsuit can be brought creates a huge problem. For obvious reasons, it's an especially a good idea to make a written agreement if a person with a big income is living with and supporting someone with little or no income.

Example 1: Rose and Ted have lived together for four years. They've never had any written agreement, but their behavior has been consistent: they've purchased a car, an oak table and a china set, with each one paying half. If they split up, a court is likely to imply an agreement and equally divide the items purchased together.

Example 2: Jon and Steve plan to buy a fixer-upper house and move in together. Jon is a carpenter; Steve is a university professor who makes nearly twice as much as Jon. Jon and Steve plan to own their home equally, so they agree in writing as follows: Steve will pay two-thirds of the mortgage, and Jon will pay one-third. Steve and Jon will equally pay for the materials to fix up the house, and Jon will contribute all the labor. Steve and Jon also agree to equally own all the property, furniture and fixtures they buy once they move in together.

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What is palimony? And should we make any agreements about it?

Palimony is a phrase coined by journalists -- not a legal concept -- to describe the division of property or alimony-like support paid to one partner in an unmarried couple by the other after a break-up. Members of unmarried couples are not legally entitled to such payments unless they have a written agreement (or a court finds there was an oral or implied agreement). A written agreement stating that you both will remain financially independent is the best defense against a cry for palimony.

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Am I liable for the debts of my partner?

Not unless you have specifically undertaken responsibility to pay a particular debt -- for example, as a cosigner or if the debt is charged to a joint account. By contrast, husbands and wives are generally liable for all debts incurred during marriage, even those incurred by the other person. The one exception for unmarried couples applies if you have registered as domestic partners in a city where the domestic partner ordinance states that you agree to pay for each other's "basic living expenses" (food, shelter and clothing).

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If one of us dies, how much property will the survivor inherit?

Nothing, unless the deceased partner made a will or used another estate planning device such as a living trust or joint tenancy agreement, or, if under the terms of a contract (such as a contract to purchase household furnishings together), the survivor already owns part of the property. This is unlike the legal situation married couples enjoy, where a surviving spouse automatically inherits a major portion of a deceased spouse's property. The bottom line is simple: to protect the person you live with, you must specifically leave her property using a will, living trust or other legal document.

The following sample agreement may be used when you and your non-married partner (or friend) jointly buy personal property (as explained in Question 1 above).

Emiko Takahashi and Sam Armistead agree as follows:

1. That they'll jointly acquire and own a sound system, including a tuner, amplifier and compact disc player (called "the system"), for approximately $1,400;

2. That should they separate and both want the system, they'll agree on the fair current value of the system and then flip a coin, with the winner becoming sole owner of the system after paying the loser one-half of the agreed-upon price;

3. That if on separation neither person wants the system, or if they can't agree on a fair price, they shall advertise it to the public, sell it to the highest bidder and divide the money equally;

*4. That should either person die while they are living together, the system shall belong absolutely to the survivor. If either Emiko or Sam makes a will or other estate plan, this provision shall be reflected in that document;

5. That this agreement can be amended, but only in writing, and signed by both Sam and Emiko.

6. That if a court finds any portion of this contract to be illegal or otherwise unenforceable, the remainder of the contract is still in full force and effect.

Insert one of the following clauses:

For mediation**:

7. Any dispute arising out of this agreement shall be mediated by a third person mutually acceptable to both of us. The mediator's role shall be to help us arrive at a solution, not to impose one on us. If good faith efforts to arrive at our own solution with the help of a mediator prove to be fruitless, either of us may make a written request to the other that the dispute be arbitrated.

For arbitration***:

7. Our dispute will be submitted to arbitration under the rules of the American Arbitration Association. One arbitrator will hear our dispute. The decision of the arbitrator shall be binding on us and shall be enforceable in any court which has jurisdiction over the controversy.

_________________ _________________
Date Emiko Takahashi
_________________ _________________
Date Sam Armistead

*If Emiko and Sam don't want the survivor to own the entire stereo system, they should delete this clause. Then, when the first partner dies, the survivor and the deceased partner's estate would own the system in the same proportions as Emiko or Sam did before the death.

**If you both already agree on a mediator, consider naming that person in the contract. Of course, make sure he or she is willing to serve before you do this.

***You can choose to have your dispute heard by three mediators instead of one, but it will be more expensive.

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