In 2021 the Uniform Law Commission (ULC) gave final approval to the Uniform Cohabitants’ Economic Remedies Act (UCERA). Resting on both contractual and equitable principles, the Act provides a framework for resolving economic disputes between nonmarital cohabitants at the end of their cohabitation, whether the end is brought about by separation or by death. For the last several decades, case law on cohabitants’ remedies in contract and equity has been “uneven,” to put it mildly. When courts apply market-based doctrines to family-like disputes, they are often reluctant to reconstruct parties’ actions within an intimate personal relationship into commercial arrangements. In light of the variations in state law approaches across the United States, the steady increase in the number of adults living within nonmarital relationships, and the inevitable mobility of the population, the ULC concluded that a uniform statutory framework could provide needed clarity, predictability, and stability for this sizable demographic group.
While there were half a million cohabiting households in 1970, by 2021 that number had grown to more than nine million opposite-sex unmarried couples, including more than three million households that resided with at least one biological child of either partner. Additionally, as of 2019, there were more than 400,000 same-sex cohabiting couples. Cohabitants make up more than seven percent of the total adult population. Cohabitants are now older, more racially diverse, and more affluent than in prior decades. Same-sex couples, who were historically excluded from marriage, are more likely than different-sex couples to cohabit as unmarried partners. In 2019, about 12% of different-sex households were headed by unmarried partners while more than 40% of same-sex households were nonmarital. Just over six percent of partners in cohabiting households earn over $90,000 per year individually, while more than half earn less than $30,000. More adults have cohabited than have been married.
Cohabiting relationships, of course, are not all alike. Some cohabitants maintain separate economic identities, while others open joint bank accounts, buy property together, and intermingle their finances. Cohabitants may equally contribute to household expenses and share household labor, or one may be the primary wage-earner while the other cares for the home. Some cohabitants raise children together. Some cohabitants may share a residence for a year or less. In drafting a uniform law for this realm, the ULC kept its sights on the broad diversity of cohabiting relationships and the need to avoid assumptions about cohabitants’ intent.
The remedies available to cohabitants at separation and death vary from state to state and have evolved largely as a matter of common law. Unlike the codification of cohabitants’ rights in many Western nations, statutory law on cohabitants’ rights within the United States consists primarily of registration schemes or restrictive laws, such as statutes of frauds. Thus, the larger domain of cohabitants’ rights is left to judge-made law. The common law by nature is nuanced, sometimes difficult to interpret, and not as accessible as codified law, particularly from the perspective of nonlawyers. The ULC took up the drafting project on cohabitants’ remedies in part because of the benefits to the general public of having a clear statutory standard, readily accessible in a state’s code. The goal was to ensure both predictability and broader understanding.
This article describes the development of UCERA, with attention to the policy choices made by the ULC along the way. We first provide a brief overview of the varied approaches to cohabitants’ rights across the United States, highlighting conceptual strands in the case law that drove some drafting choices in UCERA. In Part II, we turn to the drafting of UCERA and explain the changes within successive drafts as the Drafting Committee worked toward achieving consensus. Part III provides a closer look at UCERA itself and the Act’s intended operation. The text of the Act is provided in Appendix A.
The most significant early precedent in the United States on potential economic rights between nonmarital cohabitants was the California Supreme Court opinion in Marvin v. Marvin. Marvin was significant because of both its break with prior law and its well-known defendant, the actor Lee Marvin; the case was even the subject of a Saturday Night Live skit. Prior to Marvin, courts often rejected claims for property or support simply on the basis that such claims were tainted by the illegal or “immoral” nature of the nonmarital relationship. In Marvin, the court reasoned that “the prevalence [and social acceptance] of nonmarital relationships in modern society” meant that judicial barriers resting on the meretricious nature of a couple’s relationship were no longer justified. Rejecting arguments that the opinion would undermine the institution of marriage, the court held that unmarried cohabitants could enter into enforceable contracts to share earnings or property or for support, so long as the contract was not “expressly and inseparably based upon an illicit consideration of sexual services. . . .”
The court identified a broad range of possible remedies, including express or implied contract, partnership, and joint venture. It also announced that cohabitants should be able to seek equitable relief, such as quantum meruit, constructive trust, resulting trust, unjust enrichment, and equitable lien. Marvin, in short, acknowledged the reality of widespread cohabitation in the United States and refused to bar contractual and equitable claims between the parties based solely on their nonmarital cohabitation, a principle carried forward in UCERA. The decision was widely heralded for its rejection of moralism and as a needed response to changes in societal attitudes.
The promise of Marvin to recognize nonmarital cohabitant rights, however, has not been realized. While most states allow claims by nonmarital cohabitants in at least some circumstances, the case law has developed inconsistently. Express contract is perhaps the most uniformly recognized of all theories of relief, but a few states have imposed writing requirements on cohabitants’ agreements, and others refuse to accept household services as valid consideration. Courts are much more likely to enforce contracts between cohabitants that rest on an exchange of property rather than domestic services, reasoning that a claim arising out of services is akin to marriage. As Professor Antognini has put it, “[c]ourts hold that individuals cannot contract for exchanges that inhere in the relationship itself, such as services rendered, and generally decline to uphold contracts where the relationship could have been marital.” Evoking pre-Marvin moral concerns, courts sometimes reference the meretricious nature of the couple’s relationship or a desire to preserve marriage as a justification for refusing relief. Yet they may not require cohabitation, even if they do require showing a marital-type relationship. Although courts are more reluctant to sustain claims for support than to uphold claims for division of property, they have done so when based on express agreements.
States likewise vary in their approaches to implied contract. Most states recognize contracts between cohabitants that are implied in fact from the parties’ conduct, but proving an implied agreement to share earnings or property can be challenging. With one cohabitant pitted against the other or against a representative of the decedent’s estate, establishing an implied agreement is often highly contentious. The absence of an agreement, whether express or implied, is often dispositive, even in cases in which equitable claims have been asserted.
Some states, however, are willing to recognize implied agreements arising from the parties’ relationship. Nevada courts, for example, have held that unmarried couples may impliedly agree to hold property as though it were community property if they have lived together with the indicia of a marital relationship. Alaska courts, in turn, have developed a unique approach for “domestic partnerships,” defined as an unmarried couple living together in a “marriage-like relationship.” For those couples, Alaska courts distribute the property “according to the property’s character as determined by statute, contract, or the parties’ intent.” Partnership property—property acquired during the cohabitation—is generally distributed equally unless the parties intended unequal shares. In other words, a marriage-like cohabitation seems to give rise to a presumption of intent to share property.
In contrast, a minority of states reject implied contracts altogether, often blurring the distinction between contracts implied in fact and contracts implied in law. In Morone v. Morone, for example, the New York Court of Appeals held that cohabitants are free to expressly contract between themselves, in writing or orally, but that contracts as to earnings and assets may not be implied from the provision of services within the cohabiting relationship itself. The court’s concern was that there was a “risk of emotion-laden afterthought, not to mention fraud, in attempting to ascertain by implication what services, if any, were rendered gratuitously and what compensation, if any, the parties intended to be paid.” Such refusals to recognize implied contract exclude cohabitants from a remedy generally available under standard contract law, a restriction that inevitably burdens the economically weaker party.
A few states reject all contractual remedies—whether express or implied—if the contract arises out of the parties’ cohabitation. Courts in these states often opine that recognizing remedies between cohabitants is inconsistent with the abolition of common law marriage and that any recognition of remedies must come from the legislative branch. Illustrative is Blumenthal v. Brewer, where the court pointed to the legislature as the more appropriate branch to balance the relevant public policy considerations regarding nonmarital cohabitants’ rights. “[N]ow that the centrality of the marriage has been recognized as a fundamental right for all,” the Illinois Supreme Court wrote, “it is perhaps more imperative than before that we leave it to the legislative branch to determine whether and under what circumstances a change in the public policy governing the rights of parties in nonmarital relationships is necessary.” UCERA, of course, is a response to the courts’ pleas for guidance.
Some state courts accept equitable theories in addition to contract as a potential basis for recovery, particularly quantum meruit and constructive trust/unjust enrichment. Equitable theories may provide a basis for relief even in states that have rejected remedies based on implied contract. The interpretation and application of these equitable doctrines, however, are far from uniform. In standard applications of quantum meruit, a claimant must show that both parties had a reasonable expectation that services would be compensated, and any compensation must be reduced by benefits already received. Courts vary in their willingness to infer an expectation of compensation, with some courts falling back on the view that domestic services are presumptively gratuitous.
Cohabitants asserting claims based on unjust enrichment or the related doctrine of constructive trust likewise face a range of standards in state courts. Case law reveals varying approaches to the core requirement of a benefit having been conferred on one cohabitant by the other. As with quantum meruit, some courts presume that labor contributed by a cohabitant is gratuitous while others reject such a presumption. The drafters of UCERA kept this mix of case law in mind as they fashioned the Act’s equitable remedy.
Two decades ago, in its Principles of Family Dissolution, the American Law Institute (ALI) proposed a framework that would extend the marital dissolution doctrines of equitable distribution and spousal support to qualifying cohabiting couples, deemed “domestic partners,” based on length of cohabitation, raising a child together, and other factors. While the ALI’s approach has not taken hold, courts in the state of Washington have recognized an equitable theory of presumptive community property for long-term marriage-like cohabiting relationships, now referred to as “committed intimate relationships.” Washington’s equitable doctrine, which can be invoked at separation or at death, is available for qualifying relationships based on such factors as duration, pooling of resources, and the parties’ intent. This approach is similar, in some ways, to marriage; once a party has satisfied the burden of showing a committed intimate relationship, there is no need to show any form of contract or even unjust enrichment in order to divide property acquired during the relationship.
Finally, statutory registration and opt-in schemes for nonmarital cohabitants exist in a minority of states. Domestic partnership and civil union statutes, which provided same-sex couples with some of the benefits of marriage in a pre-Obergefell era, are still available in a handful of jurisdictions. By registering, the partners receive a defined set of rights, which range, depending on state law, from a full set of spousal rights to more limited rights. Some municipalities have extended this status to groups of more than two. In addition, Hawaii maintains a registration scheme for “reciprocal beneficiaries,” available to any two unmarried adults who are not eligible to marry one another.Colorado, in contrast, provides an opt-in framework through which nonmarital couples and other partners can select from a menu of benefits and obligations. While the registration and opt-in schemes have the advantage of reflecting the parties’ intent, they have not been widely used by the public. And, as is true with each option discussed so far, they are valid under state (or municipal) law, not federal.
In a dwindling minority of states, couples may enter into common law marriage. The requirements for such a marriage typically include eligibility for marriage, cohabitation, holding out as married, and intent to be married. Once the parties show the existence of a common law marriage, their rights and obligations are the same as if they had entered into a ceremonial marriage. The abolition of common law marriage has largely been the product of legislative action, but courts have also exercised their prerogative to abandon the doctrine as a court-made relic of the past, often noting the growing acceptance of nonmarital cohabitation.
In 2016, the Joint Editorial Boards for Uniform Family Law and Trust and Estate Acts recommended the creation of a study committee to explore the feasibility and desirability of a drafting project on the Economic Rights of Unmarried Cohabitants. In deciding whether to embark on a new drafting project, the ULC considers whether a reasonable probability exists that a large number of states will enact the act or, if not, whether it will “promote uniformity indirectly,” and whether uniformity on the subject will produce real benefits to the public. Cognizant of those criteria, the Study Committee concluded that numerous states would be receptive to a well-crafted law on cohabitants’ rights and that significant benefits to the public—especially to unmarried couples—would result.
In its initial recommendation for the appointment of a drafting committee, the Study Committee proposed consideration of distinct remedial structures: (1) “an ‘opt in’ status for unmarried cohabitants who wish to share rights and resources while they cohabit;” (2) recognition of express or implied contract for unmarried cohabitants “when the cohabitation ceases because of dissolution or death, in the absence of an ‘opt-in’ agreement”; and (3) a status-based remedy providing presumptive remedies for couples who cohabited for a defined period or raised children together. Importantly, the Study Committee Report observed that a status-based remedy would probably not achieve widespread enactment and might be viewed as a resurrection of common law marriage. The ULC’s Scope and Program Committee expressed concerns regarding several aspects of the Study Committee report, including doubts about the effectiveness of an “opt-in” alternative. After another round of memos, a Drafting Committee was appointed and began meeting in the spring of 2019. The Drafting Committee included commissioners from various states as well as ABA advisors and observers. The observers were drawn from a number of different organizations working on issues from elder law to LGBTQ rights and also included academics with expertise on the rights of nonmarital cohabitants. The names of the observers are not publicly available, but the Committee library includes thoughtful memos from observers on the key issues the Committee considered.
The Drafting Committee wrestled with several basic policy questions during the early stages of the drafting process. In contemplating the potential structure of remedies, the Committee considered several possibilities: an act based solely on contract and equity, an act with an opt-in menu of alternative benefits and obligations, or an act that included a status-based remedy. While an opt-in alternative did not garner support, the Committee did explore a status-based remedy similar to the Interdependent Partner structure in Alberta, Canada, or the ALI’s proposal for domestic partners. The first draft for Committee consideration included a bracketed article setting forth a status-based remedy of “presumptive equitable partnership.” The framework proposed in that draft listed factors to determine whether a relationship qualified, such as duration, consistency, and intent to be interdependent. For qualifying presumptive equitable partnerships, a partner would be entitled, in general, to an interest in property acquired during the partnership through various remedies. The draft also provided that cohabitants could agree to opt out of the application of the status-based remedy. The second draft considered by the Committee contained a similar status-based remedy, again bracketed, denominated “Interdependent Economic Unit.” The bracketing acknowledged that the proposed status-based remedy might not attract widespread enactment and, if left as a bracketed article in the Act, would remain a choice for enacting states.
During discussions of this approach, Drafting Committee members expressed concerns about the conscriptive nature of any status-based approach, even with the right to contract out of the status. Those opposed to including a status-based remedy emphasized the diversity of living arrangements among cohabitants and the inherent risk that a property-sharing regime might be imposed on couples contrary to their expectations and intent. At the same time, there was support for a status-based remedy in light of the difficulties cohabitants have faced in court when relying solely on contractual or equitable theories. The Committee ultimately decided against including a status-based approach and instead chose to focus on improving the provisions regarding claims based on contract and equity, as reflected in the simplified third Committee draft. Both the opt-in and the opt-out provisions were discussed as possible future projects for the ULC.
Once the Committee decided to focus on contractual and equitable claims, policy questions continued to arise. In fine-tuning the remedial provisions, the Committee endeavored to provide needed clarity to the law. Thus, one draft recognized a cohabitant’s right to a “fair and equitable” division of property acquired during the cohabitation “as a result of the efforts of either cohabitant,” with factors to guide a court’s discretion. That approach raised questions about the legal basis for the equitable remedy. Towards the end of the drafting process, the Committee settled on a different framework and developed a concept of “contributions to the relationship” as the justification for equitable relief. That concept and its intended operation are discussed in Part III.
At a more granular level, the Committee grappled with core definitions in the Act. A definition of fundamental importance was that of “cohabitant.” That is, to whom should the act apply? Questions included whether the definition should require that cohabitants have been intimate partners or have lived together for a defined period of time—or lived together at all. During Committee discussions, some people argued that a requirement of sexual intimacy would be unduly intrusive. Others countered that the ULC was charged with producing a draft for couples, not for siblings or roommates. Problems of proof were noted if a particular duration or commingling of finances was required. The Committee ultimately settled on straightforward language, discussed in Part III, that requires proof that cohabitants were “liv[ing] together as a couple.” That will be a “factual question” to be determined “based on the unique circumstances of the cohabitants’ relationship.”
Another issue that received discussion during drafting meetings was whether the Act would cover relationships of more than two people. The Committee ultimately decided to use the term “couple,” rather than address throuples or other multi-partner relationships that would pose more challenging policy issues.
A different policy question was whether cohabitants could invoke remedies under the act if they were married to a third party. On that issue, some Committee members did not want the recognition of cohabitants’ rights to undermine or prejudice the marital property rights of the third-party spouse. Others countered that rights founded on the law of contract and equity, if otherwise justified, should not disappear solely because one of the parties was married. Excluding cohabitants who are married to another individual from the purview of the Act would give those cohabitants an absolute defense against otherwise valid claims. The Committee’s final position was to permit claims by and against cohabitants who might be married to others and to address the rights of absent spouses in a general section dealing with third-party rights, as discussed in Part III, and to provide states with choices on how to address the issue.
On the Act’s substantive remedies, debates occurred about whether claims based on implied contract should be included and, if so, whether a heightened burden of proof should be imposed. The driving concern expressed by Committee members was similar to the concerns expressed by some courts in limiting cohabitants to claims based on express contract. Members worried about the evidentiary difficulty in establishing parties’ intentions in hindsight, especially within the context of a long relationship. As a result, the first and second drafts presented to the Committee imposed a clear and convincing evidence standard for claims based on implied contract. That position, however, was strongly opposed by several Committee members and observers who noted that imposing a heightened burden of proof, rather than advancing the law, would be a step backward in most states.
The Committee ultimately decided not to impose heightened evidentiary standards and to endorse the principle that cohabitants should be treated the same as others in asserting contractual or equitable claims. Thus, the third draft considered by the Committee announced that “a cohabitant may assert, and a court may enforce, a claim asserted by a cohabitant under this act on the same basis as an individual who is not a cohabitant.” That core principle is stated even more strongly in the final Act.
Other issues concerned whether the Act should address the court in which a cohabitant could bring a claim. For example, cohabitants’ claims could be seen as similar to others heard by a family court judge. To respect the variation in how states might approach the appropriate court to hear cohabitants’ cases, however, UCERA neither included a definition of “court” nor specified whether cohabitants’ claims should be heard in civil or family court, although it did comment that “[c]laims involving deceased cohabitants should be heard in the court that handles settlement of decedents’ estates and handled as a claim against the decedent’s estate. . . .”
In promulgating UCERA, the ULC was serving dual purposes: providing certainty and predictability in the law while protecting the expectations of nonmarital cohabitants. The title of UCERA, with its use of “Remedies” rather than “Rights,” reflects the ULC’s position that the Act is recognizing remedies but not creating new rights where they did not exist before. An important norm underlying the Act is that cohabitants should be able to assert contractual and equitable claims against one another in the same manner as other litigants.
Section 2, the definitional section, reflects important policy choices. A “cohabitant” is defined as one of two adult individuals who live together “as a couple” and are not married to each other. Living “as a couple” is fact-specific and, as discussed earlier, does not require a sexual element. The parties can also be married to third parties, a position in accord with most of the states that have considered the issue.
An innovation of UCERA is the concept of “contributions to the relationship.” The term means contributions that benefit one or both cohabitants or the relationship itself and includes financial contributions as well as services and caregiving. Importantly, the value of a cohabitant’s contributions is not limited to market value but includes the subjective value to the other cohabitant and to the couple. The “contributions to the relationship” concept serves both as a basis for contractual and equitable relief and as a limitation on the scope of the Act. Thus, Section 3 provides that the Act applies only to claims “concerning an interest, promise, or obligation arising from contributions to the relationship.” In other words, cohabitants may have rights against one another arising from a shared lease or a professional practice that are unrelated to their cohabiting relationship and would be governed by other law.
The principle that cohabitants should be treated the same as others in asserting contractual and equitable claims informs the entire Act but is stated directly in Section 4. That section makes clear that cohabitants’ claims shall not be barred because of a cohabiting or sexual relationship.
As to contractual claims, UCERA ensures that agreements may be oral, express, or implied-in-fact and that contributions to the relationship—whether monetary or nonmonetary—are sufficient consideration, thus avoiding the pitfalls of the common law. Under the Act, contractual claims may be asserted during and after cohabitation. Not surprisingly, terms in agreements that adversely affect a child’s right to support or that limit a cohabitant’s ability to pursue legal remedies as a victim of violence are void.
Turning to equitable relief, Section 7 recognizes that a cohabitant may bring an equitable action against the other cohabitant based on contributions to the relationship. The framework operates against a backdrop of the law of equity, such as unjust enrichment, constructive trust, and injunctive relief. In other words, it does not create a new claim in equity but provides guideposts for the exercise of equitable discretion. Importantly, unlike claims arising from contract, Section 7 directs that equitable claims accrue on termination of the cohabitation—whether by death, separation, or marriage between the cohabitants. Thus, an equitable claim based on contributions to the relationship can be asserted only at the end of the relationship. Section 7 lists factors for courts to consider in adjudicating such a claim, including the nature and value of the contributions, the duration of the cohabitation, reasonable reliance on representations or conduct of the other cohabitant, and intent.
Section 7 makes clear that equitable claims may be based on nonmonetary contributions to the relationship and need not be tied to a specific asset. The remedy is not presumptive; rather, UCERA requires a close examination of the circumstances of the parties’ cohabitation in determining whether any division of property is appropriate. As Section 7 is limited to equitable claims of “entitlement to property,” claims for future support are unlikely to succeed under UCERA if not based on express or implied contract.
The Act addresses the rights of third parties in Section 8, a topic that sparked some disagreement during the drafting process. Rather than exclude cohabitants who are married to someone else from the scope of the Act, the drafters fashioned what might be viewed as a compromise menu of options. Under Section 8, states may select a framework that best comports with state policy regarding the impact of a judgment obtained by a cohabitant on a third party, including an absent spouse. The five options range from giving the prevailing cohabitant the general status of a judgment creditor, regardless of the identity of the third party, to absolute protection of the rights of a cohabitant’s spouse as against a cohabitant’s judgment, whether based on contract or equity. The alternatives give states needed flexibility to consider how to prioritize the interests of a third-party spouse and the claim of a cohabitant.
UCERA offers a statutory framework for cohabitants’ remedies that reflects the common law in most states while also directly addressing the most troublesome doctrinal barriers to recovery that have surfaced in the case law over past decades. By recognizing contractual and equitable claims arising from contributions to the cohabitants’ relationship, the Act rejects the minority view that such claims will either resurrect common law marriage or destroy the institution of marriage. Indeed, the steady downturn in marriage rates and the increase in cohabitation rates—without regard to the presence or absence of a cohabitants’ remedial scheme in the cohabitants’ state of residence—suggest that other socioeconomic factors are at work in the decline of marriage.
In a state that enacts UCERA, cohabitants will have access to familiar contractual and equitable remedies but with greater clarity than exists under decisional law.134 By rejecting a status-based remedy but strengthening the recognition of claims arising from contract or equity, UCERA provides protections for cohabitants without presuming a particular relationship form or mindset for any cohabiting couples. A foundational principle in the Act is that cohabitants should have the same access to contractual and equitable relief as other individuals. As discussed in Part II, this principle led to a rejection of heightened burdens of proof for claims based on implied contract, a contentious issue during drafting. UCERA also forcefully rejects the conceptual barriers to contract enforcement through which judges undervalue or exclude altogether domestic services and caregiving. Similarly, the Act rejects any presumption that the contribution of household services or caregiving by a cohabitant was gratuitous. Under UCERA, moreover, monetary and nonmonetary contributions to a cohabitant relationship can be the basis for equitable relief. The discretionary nature of equitable relief is a given, but UCERA provides guideposts for the exercise of that discretion.
The Act also presents a menu of choices for enacting states regarding the thorny issue of third-party rights. Thus, a state may choose to treat a cohabitant’s judgment as a judgment in favor of a general creditor, or the state may want to enhance the rights of a spouse by permitting the spouse’s claim to come before the claim of a cohabitant. As so structured, Section 8 permits states to select the approach that best comports with state policy.
In states that enact UCERA, the public should benefit from having codified law, as opposed to judge-made law, to clarify available remedies at the end of a cohabiting relationship. If widespread enactment is achieved—always a goal of the ULC—couples who move from one state to another will additionally benefit from having predictable and stable standards governing this important aspect of their lives.
Uniform Cohabitants’ Economic Remedies Act drafted by the
NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS
and by it
APPROVED AND RECOMMENDED FOR ENACTMENT IN ALL THE STATES
at its
ANNUAL CONFERENCE MEETING IN ITS ONE-HUNDRED-AND-THIRTIETH YEAR
MADISON, WISCONSIN
JULY 10–15, 2021
WITHOUT PREFATORY NOTE AND COMMENTS
Copyright © 2021
By NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS
May 4, 2022
This [act] may be cited as the UniformCohabitants’ Economic Remedies Act.
In this [act]:
(1) “Cohabitant” means 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.
(2) “Cohabitants’ agreement” means an agreement between two individuals concerning contributions to the relationship if the individuals are to become, are, or were cohabitants. The term includes a waiver of rights under this [act].
(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.
(4) “Property” means anything that may be the subject of ownership, whether real or personal, tangible or intangible, legal or equitable, or any interest therein. The term includes responsibility for a debt.
(5) “Record” means information:
(A) inscribed on a tangible medium; or
(B) stored in an electronic or other medium and retrievable in perceivable form.
(6) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any other territory or possession subject to the jurisdiction of the United States.
(7) “Termination of cohabitation” means the earliest of:
(A) the death of a cohabitant;
(B) the date the cohabitants stop living together as a couple; or
(C) the date of the cohabitants’ marriage to each other.
This [act] applies only to a contractual or equitable claim between cohabitants concerning an interest, promise, or obligation arising from contributions to the relationship. The rights and remedies of cohabitants under this [act] are not exclusive.
(a) An individual who is or was a cohabitant may commence an action on a contractual or equitable claim that arises out of contributions to the relationship. The action is not:
(1) barred because of a sexual relationship between the cohabitants;
(2) subject to additional substantive or procedural requirements because the parties to the action are or were cohabitants or because of a sexual relationship between the cohabitants; or
(3) extinguished by the marriage of the cohabitants to each other.
(b) The action may be commenced on behalf of a deceased cohabitant’s estate.
(c) The action may be commenced against a deceased cohabitant’s estate and adjudicated under law of this state applicable to a claim against a decedent’s estate.
(a) Except as otherwise provided in this [act], a claim under this [act] is governed by other law of this state, including this state’s choice-of-law rules.
(b) The validity, enforceability, interpretation, and construction of a cohabitants’ agreement are determined by:
(1) the law of the state designated in the agreement if the designation is valid under other law of this state; or
(2) in the absence of a designation effective under paragraph (1), the law of this state, including this state’s choice-of-law rules.
(a) A cohabitants’ agreement may be oral, in a record, express, or implied-in-fact.
(b) Contributions to the relationship are sufficient consideration for a cohabitants’ agreement.
(c) A claim for breach of a cohabitants’ agreement accrues on breach and may be commenced, subject to [cite to the applicable statute of limitations on contractual claims], during cohabitation or after termination of cohabitation.
(d) A term in a cohabitants’ agreement that affects adversely a child’s right to support is unenforceable.
(e) A term in a cohabitants’ agreement that requires or limits the ability of a cohabitant to pursue a civil, criminal, or administrative remedy is voidable to the extent the remedy is available because the cohabitant is a victim of a [crime of violence].
Legislative Note: Subsection (e) should refer to a state’s statutory or judicial definition of “crime of violence” or, in absence of a definition, cite to appropriate crimes.
(a) Unless maintaining the action is inconsistent with a valid cohabitants’ agreement, a cohabitant may commence an equitable action against the other cohabitant concerning entitlement to property based on contributions to the relationship. The action is in addition to any remedy otherwise available to the cohabitant under this [act] or other law.
(b) An equitable claim based on contributions to the relationship accrues on termination of cohabitation and is subject to equitable defenses.
(c) In addition to other law governing an equitable claim, the court adjudicating a claim under this section shall consider:
(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.
(a) [Except as provided in subsection (c), a][A] court order or judgment granting relief under this [act] against a cohabitant or a cohabitant’s estate is an order or judgment in favor of a general creditor.
(b) A court order or judgment granting relief under this [act] may not impair the rights of a good-faith purchaser from, or secured creditor of, a cohabitant.
(c) 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.
(c) 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.
(c) A court order or judgment granting relief based on an equitable claim under Section 7 may not impair the right or interest of a cohabitant’s [spouse] or surviving [spouse] to the cohabitant’s property.
(c) A court order or judgment granting relief based on an equitable claim under Section 7 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.
Legislative Note: This section provides five options for treating a claim of a spouse and a cohabitant to a married cohabitant’s property:
(1) A state that chooses to treat a cohabitant’s claim as a general creditor’s claim in all cases should adopt only subsections (a) and (b) and not adopt any of the alternatives for subsection (c).
(2) A state that chooses to insulate a spouse from both contractual and equitable claims of a cohabitant should adopt Alternative A.
(3) A state that chooses to insulate a spouse from both contractual and equitable claims of a cohabitant but allow a court under certain circumstances to find that justice requires at least some satisfaction of the cohabitant’s claim against a married cohabitant should adopt Alternative B.
(4) A state that chooses to treat a cohabitant’s contractual claim as a general creditor’s claim and insulate a spouse only from an equitable claim under Section 7 should adopt Alternative C.
(5) A state that chooses to treat a cohabitant’s contractual claim as a general creditor’s claim and allow a court under certain circumstances to find that justice requires some satisfaction of the cohabitant’s equitable claim under Section 7 against a married cohabitant should adopt Alternative D.
If a state’s law provides that individuals in a civil union or domestic partnership have a right comparable to individuals in a marriage, the state should insert the appropriate terms in addition to “spouse”.
The principles of law and equity supplement this [act] except to the extent inconsistent with this [act].
In applying and construing this uniform act, a court shall consider the promotion of uniformity of the law among jurisdictions that enact it.
This [act] modifies, limits, or supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001 et seq.[, as amended], but does not modify, limit, or supersede 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in 15 U.S.C. Section 7003(b).
Legislative Note: It is the intent of this act to incorporate future amendments to the cited federal law. A state in which the constitution or other law does not permit incorporation of future amendments when a federal statute is incorporated into state law should omit the phrase “, as amended”. A state in which, in the absence of a legislative declaration, future amendments are incorporated into state law also should omit the phrase.
(a) This [act] applies to a cohabitants’ agreement made [before,] on[,] or after [the effective date of this [act]].
(b) This [act] applies to an equitable claim under this [act] that accrues [before,] on[,] or after [the effective date of this [act]].
Legislative Note: A state that previously has not recognized a claim between cohabitants based on contract or in equity arising from contributions to their relationship may choose to apply this act only to a claim that accrues on or after the effective date.
If a provision of this [act] or its application to a person or circumstance is held invalid, the invalidity does not affect another provision or application that can be given effect without the invalid provision.]
Legislative Note: Include this section only if the state lacks a general severability statute or a decision by the highest court of the state adopting a general rule of severability.
(a) . . .
(b) . . .]
Legislative Note: A state should examine its statutes to determine whether repeals or conforming revisions are required by provisions of this act relating to accrual of an equitable claim. See Section 7(b). A state also should consider whether modification to other law is desirable to reflect the state’s public policy regarding domestic partnerships or civil unions.
This [act] takes effect . . .
The Uniform Cohabitants’ Remedies Act, ©2024 the Uniform Law Commission.
