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Cohabitating can have unintended consequences

These days, a greater number of people in long-term relationships are opting to live together without marriage. One reason may be the idea that if the couple splits up, they will not incur the property loss associated with divorce. It is true that, generally, a married couple has property rights not available to single, cohabitating individuals. For instance, even if a deed to real property contains the name of only one spouse, Mississippi law grants spousal homestead rights — allowing the other spouse to stay on the marital property even after the property-owning spouse has died.

This is just one exception to the general rule that the name on the deed indicates the owner of the property who has the right to live there. Occasionally, the chancery courts in Mississippi use their equitable power to fashion a unique remedy (or “do equity” — a term meaning that the court can do what is just or equitable given the facts, as opposed to ruling based strictly upon the law). In rare cases, such equitable power may enable a person who has cohabitated with someone for a long period of time to remain living in the house.

One such instance was the case of Pickens versus Pickens, in which the litigants had been married in the past but were unmarried at their separation. The court allowed a split of assets despite the woman’s name not appearing on the deed.

The court stated that due to the work and contributions of the woman for over 20 years, she was entitled to a split of the assets because it was like a business partnership dissolving. Likewise, in Cates versus Swain, the court held that a female, who was not married to the homeowner, may be entitled to reimbursement of money spent on housing under a theory of “unjust enrichment” if she can show her money went toward down payments, closing costs, etc.

Therefore, be forewarned that living together outside of marriage may have unintended consequences when it comes to the real property at the death or split of the parties. It is always safer to consult with an attorney about the likely consequences of your cohabitating actions or discuss whether a prenup could protect your separately owned property after marriage.

Brown van Zutphen is an attorney licensed to practice law in Alabama and Mississippi. She focuses on the “elder law” areas of trusts, estates and conservatorships. Additionally, she litigates lawsuits and represents small business owners as part of her legal practice. Visit her website to learn more: or reach her at her office: (228) 357-5227.