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Eviction after 35 years of cohabitation | Elderlaw Forum

“We always meant to get married,” said the Senior Legal Helpline caller. “But something always got in the way.”

Now her brother is in the way. “He’s going to evict me from our house. Can he do that?” he asked. The answer: In most states, in the absence of a showing of an “equitable interest,” the answer is yes. He may have to pack up and move out, even though, as he insisted: “We’ve always loved each other!”

The caller is in his mid-seventies, as is his long-time cohabitee. They have lived together in a house to which she held warranty deed and sole ownership for the better part of 35 years. She inherited the house from her parents. It is valued at $125,000.

Six months ago she designated a brother as her agent under a power of attorney, deeded him the family home and moved to an assisted living facility. “She didn’t know what she was doing,” contends the caller. “She is suffering from dementia.” The brother, now named as the sole owner on the deed that was duly witnessed and notarized, has served the caller with a “notice to vacate letter.”

While the caller has spent more than three decades outside the responsibilities of marriage, he now finds himself outside the legal protections of a marriage contract recognized by state law.

“Cohabitation” is defined as “living together in a sexual relationship without marriage.” Currently, we are told that 60 percent of all marriages are preceded by cohabitation, but fewer than half of cohabitating unions result in marriage. This one did not result in marriage. And while they may have viewed their relationship as an alternative to marriage, the law doesn’t necessarily support that view.

Cohabitees may not be able to make decisions in a medical emergency, or benefit from the other’s retirement plan, or inherit the other’s property. And if they decide to part, jointly purchased property may not be divided equally.

The caller may wish to challenge the transfer of the family home, contending that his partner was mentally impaired when she executed the deed. But without the protections of a marriage contract, it may not make any difference. He should, I advised, be prepared to relocate to another domicile.

My advice to cohabitating couples: “Put it in writing.” Or, “get around to it” and make a trip to the courthouse.

 

Michael Myers

Professor

USD School of Law

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