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.
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. 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
Frequently asked questions to help unmarried couples determine who owns what.
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
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.(back to top)
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:
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.(back to top)
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.(back to top)
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).(back to top)
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:
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.
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.
*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.(back to top)