The practice of Family Law applies to much more than just
divorce. Much of our caseload consists of helping clients who
were never married to their partners or who have children born out
Children of such relationships are entitled to the same support
and attention from the courts as legitimate children of a marriage.
Please see the
sections of our website for further discussion
about the children of unmarried couples
It's important to note that Kentucky does not recognize
common law marriages contracted within this state. Neither
does Kentucky recognize same-gender marriages (KRS
402.045). Many legal rights issues and problems arise when
people have significant others or life partners and live together
without a valid marriage.
A "common law marriage" is legal in a few states and can exist
there 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 is valid in another state will generally be
recognized in Kentucky.
Traditionally, unmarried couples have not enjoyed property rights
which resemble those available to married persons. The Kentucky
Revised Statutes (KRS
403, et seq.), defines rights and duties for married couples,
but there is no such system for unmarried parties. Generally, if
there is no "partnership agreement", you will need a lawyer to
protect your rights.
In cohabitation, unlike marriage, there are no automatic
incidents of the relationship, including matters about children and
- 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.
The child support and custody provisions
of KRS 403,
et seq. do apply to children of non-married parents, regardless of
the parents' marital status. The fact that the parents did not marry
does not abate either party's obligation to provide adequate support
for their children.
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.
v. Bowen, 756 S.W.2d 149 (Ky.App. 1988), the same court upheld a
trial court's summary judgment against Pearl Murphy, who claimed an
interest based solely on evidence of a "meretricious relationship".
Other states are not nearly so adverse. See Lindemann v.
Lindemann, 92 Wash.App. 64, 960 P.2d 966 (1998), appeal
dismissed by 137 Wash.2d 1016, 978 P.2d 1099 (1999) (increased value
of male cohabitant's business subject to equitable distribution
because the partnership was entitled to his labor and efforts during
the relationship); Koher v. Morgan, 93 Wash.App. 398, 968
P.2d 920 (1998), appeal dismissed by 137 Wash.2d 1035, 980 P.2d 1281
(1999) (partner used profit from separately owned business and his
own income from the business to buy assets; court treated those
assets as subject to equitable distribution, using theory that the
assets had a "community property-like" character.
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
- Contract claims
- Partnership claims -- formal and/or informal
Quantum Meruit claims
- Constructive trusts or resulting trusts
- Various real estate concepts
- Health care directives
If you believe you have a significant claim (though not married),
you may need a competent Family Law attorney to advise you.
Domestic Partnership Agreements
Death of a Partner
Directives and Wills
Powers of Attorney
Unmarried parties who acquire real estate or personal property
together certainly have the right to enter into contracts setting
forth their respective interests. Likewise, there is nothing to
prevent unmarried parties who have business relationships together
from entering into business agreements to govern the operation of
those enterprises. The fact that the parties live together is not
essential to the validity of such agreements, unless there is over
reaching. The best way to ensure agreements are enforceable is to
have competent lawyers draft the agreements. If you do it on your
own, consider videotaping the mutual signing of the agreement.
It is possible for unmarried parties to enter into a binding
agreement similar to a "prenuptial agreement" setting forth the
waiver of future claims to property or even support.
In many states (including Kentucky), unmarried domestic partners
may enter into an agreement that creates property or support rights
which are not based solely on each party's direct financial
contribution to a specific asset. If one party makes a significant
financial contribution to an asset such as a house while the other
party's contribution is not financial (such as being a homemaker),
they may make an agreement that creates each party's respective
rights and duties.
It was this latter type of agreement that courts traditionally
refused to enforce because it was thought to promote prostitution.
Things changed in 1976 when the California Supreme Court decided Marvin
v. Marvin, (1976) 18 Cal.3d 660 [134 Cal.Rptr. 815, 557 P.2d
106]. In that case, the court decided unmarried cohabitants could
enter into valid contracts to share property or pay support in the
event the relationship came to an end. Since then, at least 37
states and the District of Columbia have recognized express
cohabitation agreements as valid, enforceable contracts.
Today, parties who could marry but who choose to live together
without marrying and same-sex cohabitants (who do not have the
option of a legal marriage) should consider entering into a written
agreement prepared by an attorney knowledgeable about such matters
which sets out in detail the parties' respective rights and duties
on the matters of property (real or personal) and support.
Such an agreement should cover all of the parties' property,
including property owned before the relationship began, as well as
property accumulated by either party thereafter (either separately
or jointly). It is recommended to especially specify who gets to
keep what in the event of a breakup.
The parties' agreement should spell out how they will divide
day-to-day costs for food, utilities, laundry, housing, etc.
The parties may opt to simply state in their agreement that, if
they separate, each of them will have the right to take immediate
possession of their respective separate property and that all
jointly-owned property will be divided equally. If there is property
owned jointly by the parties but not equally, the agreement should
specify a method for dividing it.
Including a dispute resolution method such as mediation or
arbitration is suggested, in which case the parties would include
their agreement to resort to qualified mediator or arbitrator to
negotiate a settlement of any disagreements about the disposition of
Agreements Are Not Recommended:
While an oral agreement between unmarried domestic partners may
be valid and enforceable, litigating such claims is often difficult
and expensive. Oral agreements are usually difficult to prove or
disprove and offer poor protection to the parties. As the old adage
goes, "Oral agreements are not worth the paper they are written on."
When One Partner Dies?
If one person of a married couple dies, the surviving spouse has
certain specific legal rights which may be enforced against the
That is not true for unmarried domestic partners. In such cases,
unless there is a valid will or other instrument conveying
ownership, the surviving partner may be left without a home, car,
investments, real and/or personal property.
It is strongly recommended that unmarried domestic partners
consult with an attorney to discuss the making of wills, the
designation of retirement plan and insurance beneficiaries and other
mechanisms for providing for each other in the event of one party's
The law of Kentucky will not assure an unmarried domestic partner
receives a share of the deceased partner's assets, as it does with
Any written domestic partnership agreement prepared should
address this issue and specifically address other potential
claimants' rights in the event of death.
The other side of this coin is that such an agreement can also
ensure that the surviving domestic partner's claims against the
deceased partner's estate are limited or a party's children are
Care Directives and Living Wills:
An unmarried domestic partner does not have the legal right to
make health care decisions in the event the other partner is
incapacitated and unable to express his/her wishes with regard to
However, through a Health Care Directive and a Living Will,
either party can make known his or her choices in the event of a
catastrophic illness or condition and, further, appoint an
individual such as his/her domestic partner with the authority to
make such decisions in such an event.
Such choices can include the use or restriction of artificial
respiration and the administration or restriction of life-prolonging
water and other sustenance or drugs intended to abate the patient's
pain and suffering.
Durable Powers of
A durable power of attorney for financial matters can
specifically provide for a party's right to handle matters on behalf
of the other partner under express circumstances such as
unavailability or complete mental/physical incapacity.
In other words, if one partner becomes ill or injured to the
extent he/she cannot communicate or make decisions for
himself/herself and the sick or injured partner had previously
appointed the other party with a Durable Power of Attorney, that
party could be permitted to make health care decisions, write checks
to pay bills, dispose of real and/or personal property assets and
otherwise act on behalf of the sick or injured partner.
Other subjects of importance to unmarried couples include:
Gay & Lesbian