Raymond O’Brien, ‘Marital Versus Nonmarital Entitlements’

ABSTRACT
The percentage of adult couples living in intimate nonmarital cohabitation continues to increase. The period of cohabitation is most often for a short period of time and entered into for several reasons. But for a small percentage of these and an increasing percentage of longer-term cohabitants, dissolution during life or at death often results in the unjust enrichment of one party. This Article examines methods of redress. In piecemeal fashion, a variety of states enforce nonmarital agreements, written and oral, during lifetime, while some enforce equitable remedies. Very few states enforce contract or equity remedies at death.

The paucity of remedies available to nonmarital cohabitants prompts the issue as to whether marital entitlements should be extended to nonmarital cohabitants who meet objective criteria. A modicum of states has begun to do this, and additional proposals have been introduced by the American Law Institute and by legal commentators. They propose that once a couple meets the criteria, they will be treated as spouses under state statutes. This is often the first step towards federal entitlements. This approach would entitle each party to federal and state entitlements associated with marriage, particularly distribution of property at dissolution during lifetime, or at death …

O’Brien, Raymond C, Marital Versus Nonmarital Entitlements (2020). 45 ACTEC Law Journal 79 (2020).

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