Cohabitation Agreements: Property Rights for Unmarried Couples in Illinois

 Posted on February 05, 2015 in Asset Division

While marriage is still a major cultural institution, shifting attitudes have led to a rise in unmarried couples living together. Some of these couples see marriage on the horizon, but others do not feel the need to formalize their relationship through ceremony. In fact, the 2010 Census showed a 13 percent increase in unmarried cohabitation between 2009 and 2010 alone. Unfortunately, Illinois law has yet to catch up with these changing attitudes. The state does not recognize common law marriage or other similar default property rights. This can be a problem when couples split up or when one of them passes. Fortunately, the law does still provide some options for proactive couples. Couples can enter into cohabitation agreements that mark out specific rights that they want the government to recognize. Additionally, there are special options in cases where the couples choose to purchase a house together.

Cohabitation Agreements

Cohabitation agreements are useful for solving two problems that unmarried couples may have when living together. They provide clarity in cases where the couple ends up separating, and they provide clarity in cases where one member of the couple passes on. In cases where the couple ends up separating, the cohabitation agreement can help determine who gets which property, rather than simply relying on the property rules that ordinarily affect individuals. Similarly, cohabitation agreements can also apportion responsibility for debts between the couple, as opposed to simply burdening the person who actually took out the debt.

Cohabitation agreements can also help clarify things in the event that one partner dies. Absent any cohabitation agreements or wills, the partner's property would pass on through their next of kin, rather than going to the other member of the couple.

Buying a House

Couples looking to buy a house together can also make some decisions about their rights in the house at the time of purchase. One of the biggest things that they can decide is how they would like to hold their real estate. The couple can purchase the home as joint tenants, or they can purchase the home as tenants-in-common. The difference is that as joint tenants the members of the couple own the entire home together, while as tenants-in-common each member of the couple would individually own some share of the house. That sounds like a fairly abstract distinction, but it can have important practical consequences. For instance, suppose one member of the couple passes on. If the couple opted for joint tenancy, then the other member of the couple takes owns the house completely under their right of survivorship. Conversely, if they were tenants-in-common, then the decedent's share would pass through ordinary inheritance laws to their next of kin or the beneficiaries of their will.

If you have chosen not to formalize your relationship through marriage, you may be exposed to legal risks. Contact an experienced DuPage County family law attorney to learn more about your options.