Page 458 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

to “dependents” or “spouses.” Cohabitants may also be subject to housing discrimination
in some states where the courts have determined that they are not covered by housing

anti-discrimination laws. They may be unable to adopt in many states, and a non-
biological cohabiting parent (a cohabiting stepparent) will have major trouble asserting

a right even to visitation of the couple’s children if the biological parent dies.
Cohabitants also face substantial legal problems with respect to medical care.
They are not listed as surrogate (substituted) healthcare decisionmakers under the law

of most states. This means that they may need to resort to lengthy and expensive court
proceedings if they want to play a role in decisions about the care of an incapacitated

partner. Indeed, in some hospitals they may even be denied access to their partner in
an Intensive Care Unit because they are not next of kin.

This is just the tip of the iceberg; it is estimated that literally thousands of statutes
rest benefits upon marital status in the United States. Even if a couple has registered in
a domestic partnership under the law in one of the few states that extend all the benefits

of marriage to cohabitants, they are not eligible for the many benefits under federal law.
For example, a major source of protection in the U.S. is the social security system,
which provides benefits to survivors, but cohabitants are not eligible to receive benefits

under it.
Although this is not a comprehensive list, it imparts some sense of the many

problems a cohabiting couple may face due to their lack of legal recognition.
Those problems deserve remediation.

III. Legal Reform to Address the Problems Faced by Cohabitants

In turning to consider what legal reform might be advisable to address
the problems faced by cohabitants, we do not have to write on a blank slate. Many other
countries have already met this challenge, in whole or in part. Section A below

describes many of the systems that could be drawn upon as models for such reform.
In Section B, I set forth my own recommendations for a legal system to govern

cohabitants and answer a number of objections to them.

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