Page 457 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

ฉบับพิเศษ ประจำ�ปี 2564

enrichment or detrimental reliance) to obtain a share in the couple’s accumulated assets.
This is both difficult and expensive to accomplish.

Moreover, a cohabitant is not their partner’s heir under the intestacy laws.

In the absence of a will executed in their favor, they will receive nothing. Yet empirical
studies show that most cohabitants desire that a substantial share, if not all, of their
estate should go to their partners upon their death, even though they fail to make wills.
27
(Most people are very lax about making wills, either because they dislike thinking about
death or don’t want to pay for a lawyer.) Moreover, even if there is a will, cohabitants’

estates are subject to taxation, unlike those of spouses.
2. Cohabitants’ rights versus the state and third parties

Unfavorable tax treatment of cohabitants extends beyond the estate tax.
Cohabitants are unable to file joint income tax returns and must pay tax at higher rates

as individuals. If their partner succeeds in getting them covered under health insurance
provided by that partner’s employer (as is possible under certain local government
ordinances and university policies), that will be also taxed to the cohabitant as income.

Cohabitants may not qualify for workers’ compensation benefits in many states
if a partner is injured in a workplace accident. In addition, unemployment compensation

may be denied when a cohabitant leaves a job to follow their partner to another state.
The lack of all these monetary benefits clearly harms cohabitants’ children as well.
Cohabitants are also generally unable to sue in tort for injuries they suffer when

their partners are severely injured or die. The cause of action for negligent infliction of
emotional distress, for example, which allows a close relative to sue for the distress

they have experienced in witnessing the death or serious injury of a loved one caused
by the wrongful action of a third party, is available to cohabitants only in a few states
(e.g., New Jersey and New Hampshire). Damages for loss of consortium (a personal
injury action against a wrongdoer whose conduct has caused loss of the companionship

of an intimate partner) are available in even fewer (e.g., New Mexico). Standing to sue
for wrongful death depends upon the language in a state statute, that is, whether it refers

27 Mary Louise Fellows et al., Committed Partners and Inheritance: An Empirical Study, 16 Law &
Inequality 1, 38 (1998).

455