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Unmarried couples: the importance of property rights agreements

Couples are increasingly moving in together and buying real estate without plans of marriage.

But what protections and guidance does the law provide such couples in the event of separation in regard to property rights? How will their property be divided between them? Or what about same-sex partners with a marriage license in another state who relocate to a state that doesn’t recognize their marriage license? How is their property divided in the event of a separation?

Property division in these cases is partly determined by the way the couple holds title to their property. The other factor, as noted in a recent article in the International Business Times, is whether there is a written agreement dealing with the consequences of separation before it arises.

In terms of the manner in which property is held by a couple without a marriage license, there are two types of possibilities.

The first possibility is joint tenancy. This form of ownership includes a right of survivorship. Deed must clearly convey title as joint tenancy. Transfers in this form of ownership usually will use the terminology, “joint tenants with right of survivorship.” When one of the tenants dies, ownership automatically passes to the survivor. Can unilaterally encumber and convey property interest. If this is done, title would then be held as tenants in common. Joint tenants may also sever the tenancy. To do this, they would file for a partition action. If granted, the court would physically split the property into distinct parts and give each owner an equal value, or the property would be sold and the earnings distributed between the tenants without consideration for what each contributed to purchase of the property.

In our next post, we’ll continue with this subject.

Source:, “Property Rights of Unmarried Couples,” Tracey Daniels, 27 Jan 2011.