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15 QUESTIONS FOR SENIORS TO CONSIDER PRIOR TO SIGNING COHABITATION AGREEMENT

As Americans continue to live longer, many have decided to cohabitate with a significant other (rather than marry) due to complications. These can include kids from a prior marriage or relationship or wealth accumulation by one or both parties. From a financial perspective, sometimes it is better to marry, and sometimes it is not. For example, if the significant other was a wartime veteran (hereinafter “Dwight”) and the prior spouse (“Harry”) was not, and the non-wartime veteran spouse (hereinafter “Mamie”) does not have adequate resources, income or long-term care insurance. Marriage of Dwight and Mamie may have been beneficial for Mamie if she becomes disabled since Mamie may be entitled to Veterans benefits if Mamie survives Dwight as the disabled widow of a wartime veteran. Similarly, if the income of the married couple is low enough and one spouse needs long-term care, then the “well spouse” may be entitled to preserve all resources to prevent spousal impoverishment under the long-term care Medicaid rules.

15 QUESTIONS FOR SENIORS TO CONSIDER PRIOR TO SIGNING COHABITATION AGREEMENT

On the other hand, if one spouse has minimal resources and the other has more resources, there may be a duty to support the ill spouse if married, reducing the amount of resources left to take care of the “well spouse” if they should need care in the future resulting in less of their resources passing to their heirs. Marriage could also lead to disqualification of public benefits eligibility of an applicant depending on the facts (income, resources, transfers, etc.). Furthermore, if a prior spouse was a veteran of war and the existing spouse was not, marriage to the second spouse could jeopardize Veterans benefits for the widow or widower since the Veterans Administration looks at the last spouse to whom the surviving spouse was married. Social Security income, Medicare Part B and D premiums, income taxes, etc. could also be impacted by marriage.

Before the enactment of the law giving equal rights to those of the same-sex (such as same-sex marriages), cohabitation agreements were more commonly used by same-sex partners. Now cohabitation agreements are becoming more common for seniors (but regardless of age or sexual orientation).

As a result, some of the following issues should be addressed in a cohabitation agreement:

  1. Who is responsible for the utilities (ranging from electricity to water to internet service to cable television, etc.)?
  2. Who is responsible for rent?
  3. If a home is purchased together (or even if only one owns a home), who is responsible for the mortgage, property taxes, insurance, and maintenance?
  4. If there is a mortgage, etc. what happens if one fails to pay his or her share?
  5. If there is a home, what happens upon the first one to die?
  6. If there is a home and one needs long-term care, who is responsible for the expenses related to the home, or can the “well partner” continue to live there even if the well partner has no ownership in the home?
  7. If there is a decision to separate, is there any reimbursement for expenses, taxes, etc., paid by for the one who moves from the home?
  8. In addition to all assets listed in the agreement acquired before cohabitation, how will assets acquired (jointly or individually) during the time of cohabitation be treated (including gifts)?
  9. If there is a joint bank account, will there be an agreement as to how much each contributes?
  10. Will you give your partner the ability to make medical decisions or financial decisions if you are disabled, or be a fiduciary (executor, agent, trustee, etc.) after you pass?
  11. Who is responsible for transportation (gasoline, parking, licenses, vehicle maintenance, etc.) expenses?
  12. Who is responsible for household expenses (cleaning supplies, cleaning service, home maintenance, yard maintenance, home security, home improvements, furnishings, and appliances)?
  13. Who is responsible for food (groceries, restaurants, etc.)?
  14. Who is responsible for personal expenses (entertainment, travel, hobbies, pet care costs, donations, etc.)?
  15. Will the agreement terminate if the couple decides to subsequently marry?

The list above is just some of the questions to consider.


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