SMU Law Review


Nonmarital cohabitation has become a mainstream family structure in the United States. Yet despite the increasing prevalence of nonmarital cohabitants, American family property law generally fails to support nonmarital couples. This inequality under the law disproportionately disadvantages persons of color, those with relatively less education, and couples with relatively fewer economic resources. This Article considers the post-Obergefell need for law reform to better support nonmarital families, examines the principles that should ground nonmarital property rights reform, and proposes a novel approach to nonmarital property rights that integrates the law of dissolution with the law of succession, unifies the law governing nonmarital property rights with the law of marital property rights, and better serves not only the relatively privileged but also the relatively disadvantaged.

This Article proposes an integrated “accrual adaptor” to structure nonmarital property rights at dissolution and at death. The adaptor would be applied to a jurisdiction’s existing marital property law to translate a marital property right into a nonmarital property right. Thus, the proposal would not require an adopting jurisdiction to create any novel property law structures for the nonmarital context and would be fully compatible with the substantive principles and process norms that ground the adopting jurisdiction’s existing marital property law doctrines.

The accrual feature of this Article’s proposal would work to increase nonmarital property rights as the duration of the cohabitation at issue increases. This feature is premised on the notion that unmarried committed partners who have cohabited for a relatively longer period of time are more likely to have made commitments and engaged in caretaking behaviors that nonmarital property law reform should encourage. Thus, the relatively greater nonmarital property award that the proposal would assign to a cohabitation of relatively greater duration reflects the increasing trust that third parties develop in the propensity of the cohabitation to meet the couple’s dependency needs as the relationship endures.

The proposed reform would provide nonmarital partners with lesser property rights as contrasted with marital partners in similar circumstances. This differential treatment is likely to make nonmarital property law reform more politically feasible in the short term. Moreover, such differential treatment can be justified in light of the greater commitment to mutual caregiving that marriage signifies in comparison to nonmarital cohabitation.



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