Living together
and the law
by Cindy Cumfer
Every one of us who decides to live to
gether in some committed way with a lover is
familiar with some of the issues this kind of
commitment brings — interpersonal issues,
issues with other friends and lovers, issues
with each person's family, dealing with
employers and co-workers, and neighbors.
What often remains hidden — often until too
late — are the legal issues a decision to live
together brings. Legal issues may arise when
a couple breaks up, when a creditor comes
after one or both of you, or when one person
gets sick or dies or can no longer handle their
affairs. Our society for the most part
presumes that all committed couples are
heterosexual and married. For married
heterosexual couples, various laws (e.g., di
vorce laws, intestacy laws for those who die
without a will) cover what happens when one
of these legal issues arises. No presumptions
protect lesbians and gay couples, although in
most cases we can, by agreement and pre
planning, protect ourselves. This article cov
ers some of the planning ahead that can be
done by gay and lesbian couples (and any
unmarried couple).
Living Together Contracts. When a couple
begins living together, and especially if the
couple is buying property together, their
financial affairs almost always become inter
mingled to some extent. Many couples pool
their money and make all of their purchases
from common funds. Other couples pool
some of their money and keep some of their
money separate. Some couples keep their
monies entirely separate. Couples differ as to
whether they consider inheritance and gifts
to be common monies or individual monies.
Some couples purchase homes together,
and many purchase items of furniture or ma
jor appliances together.
Most of the couples who have consulted
me as an attorney have not come to any clear
agreement about their expectations concern
ing their money and their property. Most of us
have a hard time talking about and dealing
with money, especially with people we are
very close to. However, it is far easier to do this
when we are getting along than when we are J
not getting along!
A living-together contract is an agreement
between two people who live together, spell
ing out what their understanding is concern
ing their money, their debts and expenses,
and their property. An agreement typically
states whether the parties are pooling their
money, partially pooling their money or keep
ing it separately. The agreement will state
how the expenses are shared. The agreement
will also spell out which party owns what
property. If the parties own a home, the
agreement spells out how the mortgages,
taxes, and insurance are paid, and what
equity each party has in the property. The
agreement may also spell out what happens
to the home and property if the parties decide
not to live together.
Oregon courts have stated that they will
recognize these types of agreements between
unmarried couples, whether the couples are
male and female or same sex couples.
If one of the parties has children and the
other party is co-parenting the children, the
agreement may spell out what the parties
have agreed to do about the children should
the parties no longer live together. This could
include issues of where the children live, visi
tation, and whether one party pays the other
party for support of the children. Both people
need to take into account whether the children
have another biological parent who might try
to oppose these arrangements, possibly by
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Wills (or If You Die Without A Will, Your
Lover May Want to Kill You). In the State of
Oregon, if you die without a Will, all of your
property will be divided equally between your
legally married spouse and your children. If
you have neither of those, your property will
got to your parents. If your parents are dead, it
will go to your sisters and brothers, or to their
direct descendants. In no event will it ever go
to your lover (unless your lover happens to be
one of those people I have just named). This
is true even though you may have told every
one in the state that you want your lover to
have your property.
If you do want to have your lover, or anyone
else not named in the above list to have
some or all of your property, you must make
a Will. The Will must be witnessed by two
people, who watch you sign it, hear you say
that it is your Will, and hear you say that you
know what is in the Will, and to watch each
other sign it
Some property passes at your death, re
gardless of whether or not you have a Will.
Deeds and titles held with survivorship
language, as discussed above, will pass to the
survivor, regardless of the provisions of any
Will. Life insurance proceeds will pass to your
named beneficiary, regardless of the provi
sions of your Will. You may want to arrange to
have your property pass outside of your Will
for several reasons — to keep the cost of
probate down, to assure a little more privacy
in how your property is disposed of, or to get
the property more quickly to the person who
is to receive it
The purpose of a Will is to dispose of all of
your property, except for that which does not
pass through the Will, and to handle your
other affairs upon your death. Typically, a Will
will name the persons who are to receive your
property, name a guardian for any minor
children, name a trustee and set up a trust for
any property that is going to minors or
persons to whom you wish to leave the
property in trust and name the person who is
to be responsible for seeing that the terms of
your Will are carried out.
Many people also state in their Will what
they want done with their body after their
death. Oregon law gives the right to your
family to dispose of your remains. At this
point, the law is not clear as to whether your
wishes expressed in your will wouid
overcome your family’s right to make this
decision.
Because of society’s lack of acceptance of
lesbians and gay men, drafting our Wills re
quire more thought and consideration than
rite*
R o san n e King
W ORDSM ITH
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bringing a custody suit against the parent
who has the children. Courts do not always
consider themselves bound to agreements
concerning children, even where the parties
are heterosexual and married. You should be
aware of this when considering what agree
ment you want to make concerning the
children.
Deeds and Titles. Deeds and contracts to
purchase "real property" (homes and land)
can be written up two different ways where
more than one party is the purchaser. One
way is to simply list you and your lover as
buyers, or to list you and your lover as "ten
ants in common." Doing either of those
things means that you own the property in
such a manner that should one of you die,
that person’s interest does not necessarily
pass to the other person, but will pass
through the dead party’s will, or if there is no
will, as the law provides. (See below.) The
second way to write up the deed or title is to
write both of your names in as buyers, “ not as
tenants in common, but with the right of
survivorship, that is that the fee vests in the
survivor.” When a deed is written in this
fashion, upon the death of one of the parties,
the property passes immediately and auto
matically to the other party. The property
does not even go through probate.
Motor vehicle titles may also make a provi
sion for the other party to receive full title to
the vehicle upon the death of one of the
owners. Look for the words “or the survivor
thereof’ after both of your names on the title.
Most bank accounts also have this sur
vivorship provision. You can ask your bank,
or look on the bank card that you signed and
left with the bank at the time you opened your
ac*—
Breaking Up Contracts (or Breaking Cip
Is Hard to Do). A number of people have
come to me after they have broken up, trying
to figure out what to do about their property.
Sometimes people see me after they have
agreed with their ex-lover as to how to handle
dividing up the property, have paid off the
ex-lover, did not write up their agreement,
and then the ex-lover comes back for more.
This is most likely to occur where the parties
have purchased a home together. Whether or
not you have done a Living Together Con
tract, if you have any substantial amount of
property, you should have a contract in writ
ing after your break-up, setting out the terms
of your agreement as to how the property and
debts are to be han Jled, and containing a
statement from each party that this agree
ment is a full and complete satisfaction and
release of rights and claims concerning the
relationship and property you accrued
together. At this time, each party would sign
off on all jointly held property that does not
‘ continue to be held jointly.
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