Thursday, July 23, 2009

Cohabitation Statutes: Colorado Has One Now and So Does Victoria

About the new Colorado statute, I am relying on New state law offers legal rights to unmarried couples. The article points out the advantages this law has for everyone:

While any two consenting and legally eligible adults in the state can take advantage of the new law, same-sex partners and some senior citizens in particular stand to gain important new protections by entering into a designated beneficiary agreement.

Under this law, any two adults can complete, sign and record with their county clerk a simple DBA form — available on-line — delegating to each other important financial and end-of-life decisions that, under current statutes, likely would revert to family members in the event of one partner’s death without a will.

The agreement can be revoked by either partner at any time with another simple form filed with the county clerk.

A legally executed will would supersede the designated beneficiary agreement.

The rights available to designated beneficiaries include the power to make medical decisions for the partner, guardianship of an incapacitated partner, dependent status for health insurance eligibility, assignment of life insurance benefits, hospital visitation rights and end-of-life decisions, including burial arrangements.

Property rights are ensured by provisions to facilitate financial planning, recognize joint ownership of assets and provide for automatic inheritance of property in the absence of a will.

A designated beneficiary would also have the right to sue for wrongful death in the event of a partner’s death, a right not previously permitted under Colorado law.

The article points out a fact that I suspect applies to Indiana, at least my part of Indiana:
Though largely under the statistical radar, one of the fastest growing categories of couples living together without benefit of marriage is senior citizens. The 2000 Census determined that the percentage of unmarried couples 65 and older “rose significantly” in the previous decade, while Forbes Magazine reported that the number of heterosexual “unmarried partner households” increased by 50 percent between 2000 and 2006.

Ninety-nine percent of cohabiting senior couples are widowed, separated, or divorced.
Over in Australia, Will Vault published Family Law - Cohabitation Agreement Pursuant To Section 285 Of The Property Law Act 1958 (vic.) Compare this with the Colorado statute:
Whilst Victoria, along with other State Parliaments, save for Western Australia, have agreed to refer their powers over defacto and same-sex property matters to the Federal Government, Victorian courts still exercise power over cohabitation agreements entered into between two partners who intend to live together. This power is exercised in Victoria under Section 285 of the Property Law Act 1958 (Vic.). This section gives Victorian courts the authority to adjust the interest of domestic partners in property which either or both may own in terms that appear just and equitable having regard to a number of factors such as:

- Financial and non-financial contributions made directly or indirectly by the domestic partners to acquiring or improving any property; and

- Contributions made by either of the domestic partners as to the welfare of the other domestic partner or to the welfare of the family including any children.

Increasingly, partners considering cohabitation (as opposed to formal marriage), and either have no children from previous relationships or who do not wish to have any children from the current relationship, are entering into cohabitation agreements pursuant to the Victorian Property Law Act 1958.

The primary purpose of such a cohabitation agreement is to protect the assets of each party in the future. The agreement provides that should the relationship end, each party will leave the relationship with those assets which he or she brought into the relationship. Only jointly acquired assets fall into the asset pool for distribution by Victorian courts pursuant to the powers provided by Section 285.
And a difference, which I think is key (why have an agreement if it does not determine the outcome in a breakup?):
Clients should be advised, however, that agreements under Section 285 of the Property Law Act are not definitive. Such cohabitation agreements will not necessarily finally determine the distribution of assets in the event of a relationship breakdown. However, the cohabitation agreements may be taken into account by Victorian courts in their determination of what is a just and equitable resolution of the distribution of property when the domestic relationship has ended.
I suspect that our General Assembly will take its time in considering any cohabitation law, but we can hope. They will do nothing unless people start asking for such a law. If you think it is a good idea, let your state representative and Senator know about it.

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