John and Jane never married, had no children, but lived together for eight years before separating. John spent his days golfing and painting; Jane, a surgeon, was the sole provider. Can John now claim 50% of the couple’s assets acquired during the relationship?
Sam and Sue never married but lived together for eight years. Sam, an attorney, was the sole provider; Sue was a homemaker who raised the couple’s two children. Sam died suddenly without a will. Is Sue entitled to 50% of the couple’s assets acquired during the relationship?
The answer to both these questions could be “yes”—but only if John and Sue can prove the existence of a “committed intimate relationship”, or a CIR.
Unlike some other states, Washington does not recognize common law marriages. Under Washington law, however, unmarried persons in a long-term, marriage-like relationship are granted certain rights if one can demonstrate that they were in a committed intimate relationship. The difference is that a common-law marriage is deemed to be a marriage like any other, with all of the rights and liabilities that entails, whereas a CIR is merely a basis for claiming assets.
To determine whether a CIR existed, courts engage in a fact-based inquiry addressing several factors, including whether there was continuous cohabitation, the duration of the relationship, the purpose of the relationship, whether the parties pooled resources, and the intent of the parties.
Perhaps the most significant of these is the “pooling” factor: courts look to see whether both parties shared finances, owned property or investments together, contributed time and effort to a joint project, or otherwise commingled assets and resources. In the examples above, for instance, there is no indication that Jane and John pooled their resources; under Washington case law, the fact that John lived off of Jane’s income may not be enough, and that might leave him out of luck. Sue, on the other hand, obviously made a significant contribution to a major joint endeavor (though nobody who has had them would call children “assets”); it is more probable that a court would find this factor had been met in the case of Sue and Sam.
If a court finds a CIR, it then evaluates the interest each party has in the property acquired during the relationship, with the goal of making a just and equitable distribution of such property. The rule of thumb is that only property that would have been considered community property had the parties been married is subject to distribution.
But a CIR conveys only limited rights. Unlike a spouse, one in a CIR does not have the right to collect social security benefits or make healthcare or end-of-life decisions, among other things. To obtain these rights, put a ring on it (or move to a state that recognizes common-law marriages).
On the other hand, avoiding a CIR is not so straightforward. Whether one existed will be determined after the fact, by a judge exercising discretion based on a number of factors. For instance, taking care to avoid commingling resources would guard against—but not necessarily preclude—the creation of a CIR. Those who are concerned about the issue would be wise to create a cohabitation agreement expressly stating their intentions.