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3. Cohabitants’ rights based on status

One state, Washington, avoids these problems by basing cohabitants’ rights on
status. If a couple falls within the definition of what is now called a “committed intimate

relationship,” their property will be divided as though they were married upon
termination of the relationship by either death or dissolution. Thus if a couple’s
relationship is “marital-like,” characterized by characteristics such as continuity,

duration, purpose, pooling of resources, and intent, the status will be imposed upon
them automatically. 25

The American Law Institute – a group composed of lawyers, judges, and law
professors that makes recommendations about the law – has also endorsed a status-based

approach. The ALI approach would apply to property division at the end of a relationship,
treating it according to the ALI rules for property distribution upon divorce. Cohabitants
would be presumed to qualify if they had lived together for a state-defined period of

time and acted jointly with respect to household management or had a child in common. 26
Finally, some states and localities have domestic partnership schemes that offer

a variety of rights to cohabitants. Most of these were set up before same-sex marriage
was available, but some survived its approval by the Supreme Court in 2016 and are

open to opposite-sex as well as same-sex couples. Some offer only limited benefits,
such as eligibility for coverage under a partner’s health insurance and the like, but others
(in California and Illinois, for example) extend to all the rights of marriage under state

law. In my opinion, these and other arrangements that require registration are inadequate
because, as noted above, most people fail to take action to protect themselves. Moreover,

none of these state measures can give the benefits that are available to married couples
under federal law, which are substantial.
B. Problems Faced by Cohabitants under the Current Law

Marital status affects legal rights in the United States in a multitude of ways —

more than in other countries because so many benefits are privatized. For example,

25 Connell v. Francisco, 898 P.2d 831 (Wash. 1995).
26 American Law Institute, Principles of the Law of Family Dissolution §§ 6.03-6.05 (2002).

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