Dear Mr. Premack: My wife died and a while after her death, her best friend and I started living together. We do not want to get married. We are living in her house and renting out my house. What do we do now to protect ourselves and our children, grandchildren and great grandchildren? MG and WN
People are living longer and sometimes, as circumstances change, old friendships change into romantic and supportive relationships. Getting old does not mean that romance or the need for companionship and intimacy stops.
There was a time, however, when those benefits were available only in marriage. Today, remaining unmarried no longer carries a negative stigma, and in fact may be the smartest way to handle family and finances.
When two adults form a close relationship and begin to cohabitate, various legal issues arise. In your letter, you ask how to protect yourselves and your descendants. A written Cohabitation Agreement between the parties is necessary, and should be prepared by legal counsel to cover many different angles. Both parties should have ample opportunity for the Agreement to be reviewed by separate legal counsel before it is signed. Ideally the Agreement should be completed before you begin to cohabitate, or as soon as possible.
The Cohabitation Agreement should cover a wide variety of topics. For instance:
You should agree that the relationship is that of landlord-tenant and of intimate friends. You should agree that neither of you will hold out to the community that you are married or that you intend to marry. In this way, you avoid creating a legally binding “informal marriage” under the Texas Family Code. Informal marriage can be created simply by residing together, by deciding to treat each other as spouses and by telling others in the community that you are spouses. Avoid those implications by agreeing, in writing, that you are not married.
You should agree that you can both make estate-planning arrangements without involvement or knowledge of the other. You should agree to accept the terms of any estate-planning arrangement made by the other, and to waive any claims against each other’s assets.
You should agree whether any rent will be paid to the party who owns the house. If no rent will be paid, will there be other tasks expected in exchange for lodging (like cooking and cleaning, or lawn maintenance)? The agreement should clarify the circumstances under which the cohabitation will end. For instance, what if the homeowner has to move to a nursing home? Would the tenant be allowed to stay, or must the tenant move out of the house?
The Agreement should cover the mixing of your personal items and furnishings. Each of you may place favorite furnishings in the house, and you might even buy some new furniture together. If one of you dies, the agreement should dictate how those items will be handled. You do not want the adult children of the other party to descend on your home and peruse all of your personal effects, and maybe claim that something which is yours belonged to their parent. Creating a list or even a photo-log of items can help avoid conflicts.
Once the Agreement is in place, what will be done with a house that has been vacated (one party will leave their home to begin the cohabitation)? The Agreement should confirm that house belongs solely to the person who owned it before the cohabitation. If the house will become a rental property, the owner should consider setting up an LLC (Limited Liability Company) to protect all of the other assets if a mishap occurs which creates a legal liability.
Paul Premack is a Certified Elder Law Attorney in San Antonio. His firm has offices in Texas and Washington, and handles estate planning for all ages, probate law and business entity formation issues.
This column first appeared in the San Antonio Express-News (MySA.com) on September 2, 2014. Click here to view the column at MySA.com.