What's the Deal With Palimony?
Who qualifies as a spouse? An unmarried cohabiter or domestic partner lacks marital status and therefore the automatic rights granted to spouses. When a domestic partner dies, status law grants the surviving partner none of the rights of a married spouse.
Intestate succession law gives a surviving spouse a large share of the intestate estate on the theory of imputed or attributed intent: The law deduces that most decedents would have wanted to leave everything to the survivor.
But the law grants the survivor in an unmarried couple no share at all; the omission treats the surviving partner as no more a natural object of the decedent's bounty than a complete stranger.
For most people, cohabitation is a temporary or short-term state. It's the longer-term cohabitations that tend to find their way into the legal system. Unmarried cohabiter cases often come to public attention because they involve a wealthy celebrity. The case that has received the most notoriety is Marvin v. Marvin. The Marvin case was one of the first to confront the problem of remedy in a domestic-services case — a domestic partnership that follows the division-of-labor pattern of the traditional marriage. The plaintiff specializes in household production, an asset perhaps worth something in the remarriage market after dissolution but worth little in the labor market.
In many litigated cases, there is an enormous disparity of bargaining power between the parties: The defendant, by being older and already wealthy, is often in a dominant position. The plaintiff, who has virtually no legal rights, is in a subordinate position.
The plaintiff in many litigated cases alleges an oral contract, which, in the end, may not be provable. The Marvin case fell into this category. The plaintiff, Michelle Triola, brought a breach of contract action against the defendant, the actor Lee Marvin.
She alleged that in October 1964, she and Lee Marvin "entered into an oral agreement." As is typical of these complaints, she listed not only the domestic services she agreed to perform but also the opportunities for employment or training she agreed to forgo — a "lucrative career as an entertainer [and] singer."
In turn, Lee Marvin, she alleged, not only agreed "to share equally any and all property accumulated" during the cohabitation but also "to provide for all of [her] financial support and needs for the rest of her life."
Michelle and Lee Marvin lived together for about five and a half years — from October 1964 to May 1970 — after which he compelled her to leave his household. He continued to support her for another year and a half, until November 1971, but thereafter refused to provide further support.
A few post-Marvin decisions in other states have held that contracts between unmarried cohabiters are unenforceable. The Marvin court sought to remove this obstacle to enforcement, but Michelle Marvin was unable to prove that she had an oral contract with Lee Marvin, so she ultimately wasn't entitled to anything. The courts in a few jurisdictions have closed the door to plaintiffs without an express contract.
The test, then, is an express written contract, similar to the efficiency accruing to spousal rights on status. The domestic partner with a contract can claim contractual rights without having to prove anything about the underlying details or commitment of the relationship. Just as the marriage certificate qualifies the spouse for what the law allows, the written contract qualifies the domestic partner-plaintiff for what the contract allows.
Some states don't recognize common-law marriages, or the arrangement may not fit the criteria for common-law marriage — this is where palimony suits come in — when the surviving partner is making a claim to a share of a decedent's estate. The plaintiff is usually seeking a division of the couple's property, not an award of periodic payments similar to alimony.