LIVING TOGETHER ("Joint Ventures")

Property Rights

Do you really know what your rights would be if you and your significant other parted ways?

The definition of "family" has changed dramatically in the last few decades. The American Academy of Matrimonial Lawyers (www.aaml.org) publishes a booklet entitled "Making Marriage Last" and has even developed a new model for consideration of "What is the family and what are the rights?" Even so, Kentucky has been pretty harsh or at least it is difficult and complicated to claim your rights in unmarried relationships.

Kentucky appellate courts have repeatedly refused to create property rights solely on the basis of unmarried cohabitation, even when the parties' relationship closely resembled marriage. In Glidewell v. Glidewell, 790 S.W.2d 925 (Ky.App. 1990), the Kentucky Court of Appeals held that no property rights arose from a relationship in which the parties held themselves out as husband and wife and filed joint tax returns because none of the states in which the parties lived permitted common-law marriage.

A "common law marriage" is legal in a few states and can exist when the parties agree to be married to each other and hold themselves out within their community as husband and wife without benefit of a state-issued license. In such instances, a common law marriage which may be valid in another state may be recognized in Kentucky.

Traditionally, unmarried domestic partners (whether of opposite sexes or of same sex) have not enjoyed property rights that resemble those available to married persons. Kentucky Revised Statute 403, et seq., defines rights and duties for married couples, but there is no such governing law for unmarried parties. Generally, if there is no agreement, you will need a lawyer to protect your rights.

In cohabitation situations, unlike marriage, there are no automatic incidents of the relationship, including matters about children and property. For instance:

• One unmarried party does not have an automatic right to share in business enterprises, real property or personal property owned or in the possession of the other party;
• One unmarried party does not have the automatic right to inherit from the other's estate;
• One unmarried party does not have the right to health insurance coverage on the other's policy (though their children can be covered);
• One unmarried party is not entitled to make health care decisions on behalf of the other party if incapacitated without a valid Health Care Directive; and so forth. \

In Murphy v. Bowen, 756 S.W.2d 149 (Ky.App. 1988), the Kentucky Court of Appeals upheld a trial court's summary judgment [meaning no facts need to be proven] against an alleged common-law wife, who claimed an interest based solely on evidence of a "meretricious relationship".

Even though Kentucky law does not initially appear to be encouraging, there are a number of very important and successful ways to address the ending of such relationships. A capable lawyer can pursue:

• Contract claims -- written and/or quasi
• Partnership claims -- formal and/or informal
• Quantum Meruit claims
• Constructive trusts or resulting trusts
• Various real estate concepts
• Health care directives

If you are in a serious relationship with someone and you choose not to or cannot marry that individual, talk to an experienced Family Law attorney about your rights, duties and options for protecting your interests.

See, also, our section on Domestic Partnerships.