The Uniform Law Commission (ULC) adopted the Uniform Cohabitants’ Economic Remedies Act (UCERA) in July 2021 to address the increasingly frequent issue of unmarried cohabitants who end their relationship but own property together or who’ve made promises to one another. Married individuals have the benefit of elaborate procedures to adjudicate their property rights. Not so regarding unmarried cohabitants even though the number of unmarried cohabitants in the United States is substantial and growing. The Prefatory Note to UCERA cites these statistics:
UCERA responds to the increase in the number of nonmarital cohabitants in the United States over the past half-century. The Census first began including ‘Unmarried Partner’ as a possible relationship in 1990.1 As of 2019, more than 17 million people, representing seven percent of American adults, were cohabiting.2 More adults have cohabited than have been married.3 The number of older adults who cohabit is also growing. In 1996, only two percent of partners in cohabiting households were ages 65 or older; by 2017, that number had tripled to six percent.4 Just over six percent of partners in cohabiting households earn over $90,000 per year, while more than half earn less than $30,000.5
Even though a state lacks a mechanism to address the unwinding of property rights, there are property rights, so what happens? The cohabitant who’s stronger—economically, psychologically, emotionally, physically—may win the battle.
Common Sense Alternative
UCERA provides a common sense alternative: It treats an unmarried cohabitant like every other citizen of the state. To illustrate, suppose my roommate (but not my cohabitant) and I installed shelves in our rental apartment that damaged the walls and voided our deposit. My roommate agreed to cover the deposit when we moved out because I bought the shelves. If my roommate doesn’t cover the deposit, then I have a claim against my now former roommate (even if our legal system makes enforcing that claim uneconomical) and, at the very least, will take the shelves with me. Unmarried cohabitants should be treated the same way.6
You’ll search in vain for statutes denying the right of unmarried cohabitants to bring claims against one another, but in many states, judges are very reluctant to adjudicate the claims of those who have intimate relationships.7 Perhaps there’s a lingering feeling that such relationships are meretricious, perhaps there’s a sense that any claims between the parties must necessarily involve at least in part a sexual relationship (which state law won’t allow to be consideration for contractual or other claims) or perhaps there’s some other unrecognized factor.
ALI Approach
In 2002, the American Law Institute (ALI) recommended in its Principles of the Law of Family Dissolution: Analyses and Recommendations that states ought consider enacting property dissolution and alimony structures akin to those in a marital dissolution for unmarried cohabitants who satisfied a list of criteria, which it felt described a marriage-type relationship. Washington state has come closest to adopting the ALI status approach by allowing a court to apply community property principles to divide assets in the presence of a long-term, marriage-like cohabitation that involves sharing finances and other indicia of an interdependent relationship. Other countries have moved further to create status for unmarried cohabitants as described in footnotes 9 and 10 of the Prefatory Note:
9 SeeConnell v. Francisco, 898 P.2d 831 (Wash. 1995) (applying equitable presumption of community property principles to parties who lived in marriage-like ‘meretricious relationship’); Muridan v. Redl, 413 P.3d 1072 (Wash. Ct. App. 2018) (applying Connell and affirming that certain assets acquired during the relationship were to be classified as community-like property subject to a 50/50 equitable division between the parties). However, some other countries have enacted legislation similar to the system set out in the ALI Principles. E.g., Adult Interdependent Relationships Act, S.A. 2002, c A-4.5 (Can.), http://www.qp.alberta.ca/1266.cfm?page=A04P5.cfm&leg_type=Acts&isbncln=9780779780334 [https://perma.cc/N7FX-8PT3]; Family Statutes Amendment Act, S.A. 2018, c 18 (Can.), https://www.assembly.ab.ca/ISYS/LADDAR_files/docs/bills/bill/legislature_29/session_4/20180 308_bill-028.pdf [https://perma.cc/X4KU-FYN5] (making numerous references to the Interdependent Relationships Act and substantially affecting the rights of those who qualify as Adult Interdependent Partners).
10 E.g., C.R.S.A. § 15-22-104 (2021); NCLR, Marriage, Domestic Partnerships, and Civil Unions: Same-Sex Couples Within the United States (2020), https://www.nclrights.
org/wpcontent/uploads/2015/07/Relationship-Recognition.pdf. Other countries have adopted opt-in systems. See, e.g., Mary Charlotte Y. Carroll, Note, When Marriage Is Too Much: Reviving the Registered Partnership in A Diverse Society, 130 Yale L.J. 478, 508—513 (2020)(discussing Belgian and French opt-in systems).
UCERA rejects the status approach entirely as it’s only an enabling act. Section 4 provides that unmarried cohabitants have the same rights, but no more, as all other citizens.
Cohabitants’ Rights
Section 4(a) states that a cohabitant may bring an action on a contractual or equitable claim that arises from the contributions of the cohabitant to the relationship. An action is neither barred nor subject to additional substantive or procedural requirements merely because the parties have cohabited or had a sexual relationship. Claims may be brought by or against a deceased cohabitant’s estate and, if against an estate, it’s handled like all other claims against the estate. If the cohabitants marry, the marriage doesn’t extinguish any claims.8
Because UCERA merely enables, certain difficult issues become easier, such as the definition of “cohabitant.” If an act creates status, it must be very careful and precise as to who’s in and who isn’t. The definition isn’t as significant for an enabling act. Who’s an unmarried cohabitant under UCERA? “Unmarried” is straightforward. A “cohabitant” is defined as:
each of two individuals not married to each other who live together as a couple after each has reached the age of majority or been emancipated. The term does not include individuals who are too closely related to marry each other legally.9
The key phrase is “lives together as a couple,” which almost everyone agrees has no precise meaning. Most of us know some individuals in relationships who don’t live together as a couple and others who do, and most of us would have a difficult time writing criteria that would separate the two groups clearly. In most instances, it will be clear to the court whether the litigants before it live together as a couple, and if they don’t, then the court is unlikely to find any reason under state law to deny a remedy to claims brought by one or both.
This definition accomplishes other important goals: (1) UCERA doesn’t deal with relationships involving minors. Time spent while a minor is in a relationship with someone else doesn’t count when a court considers whether individuals live together as a couple. Of course, minors likely have rights outside of UCERA that will protect them; and (2) UCERA applies only to couples, not to relationships among more than two individuals. Example 1 of the Comment to the definition of unmarried cohabitants notes:
Example 1: A, B, and C live together. Even if A and B are a couple, and B and C are a couple, and A and C are a couple, UCERA does not consider A, B, and C collectively as cohabitants. Thus, A may enter into a contract with, or make an equitable claim against, C, but A, B, and C cannot enter into an agreement under this act. Of course, each may have claims under other state law.
Polyamorous relationships and households in which more than two individuals live together intimately and/or with shared financial and other dependencies certainly exist. UCERA leaves consideration of those relationships to another day when states have more experience with robust structures dealing with two cohabitants.10
Contributions to Relationship
The careful reader will note that contracts and claims under Section 4 may be predicated on “contributions to the relationship.” Section 2(3) defines “contributions to the relationship” with the apparent intent being to include all possible contributions other than those based on sex. The definition reads:
(3) ‘Contributions to the relationship’ means contributions of a cohabitant that benefit the other cohabitant, both cohabitants, or the cohabitants’ relationship, in the form of efforts, activities, services, or property. The term:
(A) includes: (i) cooking, cleaning, shopping, household maintenance, conducting errands, and other domestic services for the benefit of the other cohabitant or the cohabitants’ relationship; and (ii) otherwise caring for the other cohabitant, a child in common, or another family member of the other cohabitant; and
(B) does not include sexual relations.
Property
UCERA also defines “property” broadly, as anything or any interest in anything that may be the subject of ownership, whether real or personal, tangible or intangible or legal or equitable and includes responsibility for a debt. Thus, UCERA makes clear that household services may be consideration for contracts and may otherwise be the basis for equitable claims, as may child care and the care of the other individual’s parent or other family member.
Enforcement of Claims
UCERA defers to other background law with respect to the bringing and enforcement of claims. Section 6(a) provides that a contract may be written11 or oral, express or implied in fact, but certain contracts that would affect child support or the rights of victims of crimes—the sort of contracts that states customarily refuse to enforce—can’t be brought under UCERA. Contractual claims arise on breach and can be brought whether the cohabiting relationship is still in existence.
Section 7 of UCERA deals with equitable claims that are in addition to, not instead of, other claims a cohabitant may have (for example, partnership claims) but may be limited by the terms of a contract between the cohabitants. No claim accrues so long as the relationship continues.12 Section 7(c) sets forth general factors a court ought consider, in addition to other state law applicable to equitable claims, when evaluating the contributions to the relationship of the cohabitants:
(1) the nature and value of contributions to the relationship by each cohabitant, including the value to each cohabitant and the market value of the contributions;
(2) the duration and continuity of the cohabitation;
(3) the extent to which a cohabitant reasonably relied on representations or conduct of the other cohabitant;
(4) the extent to which a cohabitant demonstrated an intent to share, or not to share, property with the other cohabitant; and
(5) other relevant factors.
Of particular interest is the first factor, which directs a court to look not only to the market value of contributions to the relationship but also to the value to each cohabitant. The Comment to Section 7 explains this direction:
Most importantly, the factors ensure that contributions to the relationship are appropriately valued. These contributions are the essence of the sharing and exchange between the parties and therefore proper valuation is crucial. The Restatement (Third) of Restitution and Unjust Enrichment§ 28 cmt. d (Am. Law Inst. 2011) notes that equitable claims ‘based purely on domestic services are less likely to succeed, because services of this character tend to be classified among the reciprocal contributions normally exchanged between cohabitants whether married or not.’ When the contributions are provided in the form of services, UCERA generally, and this section in particular, dictates that they not be thought to be provided gratuitously. Courts are directed to evaluate contributions broadly, by including consideration of the subjective value to each cohabitant and to the cohabitants as a couple, as well as market value. For example, the value of a homemaker cohabitant’s services to the household should be valued at more than the hourly rate of a housekeeper or cook, and the benefits that the cohabitant performing the services likely receives from the other cohabitant should be valued as well. Generally, market value will be determined at the time of contribution, while value to the cohabitant(s) will be determined as of a later date.
Example: A and B are cohabitants. A takes care of the home and the four children of A and B, while B starts a successful business (but spends little time on domestic services). Both the value of the business and the value of A’s domestic services are contributions to the relationship that would be evaluated and considered if A brought a claim against B for an interest in the business.
Spousal Rights
Even though UCERA is an enabling act, if one or both cohabitants are married to others, that situation poses an issue heretofore only presented obliquely, an issue simple to state but difficult to resolve. Individual X is an unmarried cohabitant with Y but simultaneously is married to Z. The relationship between X and Y dissolves, and Y has claims against X. What role, if any, should the rights of Z as X’s spouse play in adjudicating contractual and equitable claims between X and Y?
Section 8 of UCERA gives a state the language for any one of five choices. A state may provide that the claims of a cohabitant are determined without regard to marital status. The rationale would be that a spouse may engage in all sorts of conduct that diminishes marital assets in addition to, or other than, cohabiting; if a state provides other protections for a spouse in such instances, as many do, those protections would be unaffected by UCERA.13
Or a state may go exactly the other direction and provide that under no circumstances may a spouse’s interests be diminished by the claims of a cohabitant. To return to the example above, if Z’s rights would be diminished by any award to Y, then no award could be made to Y. However, in other instances, it would be the interests of others—children for instance—whose rights would be diminished by awards to a cohabitant.
Section 8 provides three intermediate possibilities. A spouse could be insulated from contractual claims, but not equitable claims, or from equitable claims but not contractual claims. Allowing some claims priority but not others would give weight to one type of claim, perhaps outsized weight, or perhaps weight that a state could justify under its public policy. Finally, Alternative B of Section 8 would require that a spouse be given notice and the opportunity to be heard and would ask the court to evaluate how much of a claim ought to be awarded, balancing the interests of the spouse with that of the cohabitant claimant.14
Which of the approaches set forth in UCERA is most popular will be interesting to observe. And perhaps states will conjure up their own approaches that are even better. Of course, UCERA doesn’t affect at all certain federal rights of a spouse, like those created by the Employee Retirement Income Security Act of 1974.
An Important Advance
UCERA is an important advance in U.S. property law and family law. It can be expected to be controversial in several states, although perhaps for different reasons in different states, with some disappointed that it doesn’t go on to create a new status and others disappointed that the matter is addressed at all. Almost 100 years after New State Ice Co. v. Liebmann, the states will serve as laboratories just as Justice Louis D. Brandeis envisioned.15
—The author was co-chair of the UCERA drafting committee. The opinions in this article are his alone and may not be read to be official comments from the ULC or the drafting committee.
Endnotes
1. Linda A. Jacobsen, What is a Household? (2020), www.prb.org/what-is-a-household/.
2. Benjamin Gurrentz, “Cohabiting Partners Older, More Racially Diverse, More Educated, Higher Earners,” Corridor News (2019), www.census.gov/library/stories/2019/09/unmarried-partnersmore-diverse-than-20-years-ago.html.
3. Nikki Graf, “Key Findings on Marriage and Cohabitation in the U.S.” (2019), www.pewresearch.org/fact-tank/2019/11/06/key-findings-on-marriage-and-cohabitation-in-the-u-s/.
4. Gurrentz, supra note 2.
5. Ibid.
6. Any relationship between this example and any actual occurrence is specifically disclaimed by the author.
7. See the text of the Prefatory Note associated with footnotes 11 to 16.
8. This is to prevent the unfairness of the cohabitants’ agreement to specific monetary arrangements—you’ll support me until I finish school, then I’ll support you until you finish school—being vitiated by marriage.
9. Uniform Cohabitants’ Economic Remedies Act (UCERA) Section 2(1).
10. The definition also excludes those who may not legally marry. Siblings, older parents and children or other relatives often reside together but aren’t the focus of the UCERA because no one believes a state would disallow claims among such individuals on account of their living together. Nonetheless, excluding family members was thought to limit confusion.
11. The Uniform Law Commission uses the phrase “in a record” in lieu of written, because in a record includes all sorts of electronic media. UCERA applies to contracts between cohabitants that are in a record.
12. Thus, if a cohabitant asserts that an equitable claim is “too late” under the applicable state statute of limitations, the meaning of “lives together as a couple” becomes important because when the parties cease to live together as a couple would be the limitations trigger. This is a situation in which a more precise definition would be helpful, but only time will tell if cases emerge that turn on this timing question.
13. In short, a spouse might gamble away $100,000, or create a claim by a cohabitant for $100,000, and both would be dealt with in the same manner.
14. This alternative provides that:
A court order or judgment granting relief under this [act] may not impair the right or interest of a cohabitant’s [spouse] or surviving [spouse] to the cohabitant’s property unless: (1) the [spouse] had notice of the proceedings on the claim and an opportunity to be heard; (2) before entering the order or judgment, the court determines based on the totality of the circumstances that justice requires that all or part of the cohabitant’s claim should be satisfied; and (3) the order or judgment preserves as much of the [spouse’s] right or interest as appropriate or legally required.
15. New State Ice Co. v. Liebmann, 285 U.S. 262 (1932), dissent at p. 311 extolling state experimentation.