Properties of Intimacy

Emily J. Stolzenberg

Today, nearly nineteen million U.S. adults are cohabiting with an intimate partner. Yet family law continues to struggle with the question whether these unmarried partners should have relationship-based rights in one another’s property. Generally speaking, states answer “no.” Because cohabitants are not spouses, they’re treated like strangers. As a result, their property rights usually follow title, and richer partners tend to walk away with a large proportion of the property acquired during the relationship.

This Article shows the “cohabitant problem” to be no anomaly, but rather the clearest manifestation of family law’s overarching structure. In marital property regimes as well as in cohabitant disputes, states and scholars have taken title as both a starting and a presumptive ending point, which means that assigning property rights in any other way is “redistribution” requiring special justification. This deferential approach to title limits family law’s ability to achieve sharing outcomes, not only between cohabitants, but also between spouses.

Rather than bowing to title and then redistributing, family law should reconsider how it assigns property entitlements in the first instance. Nonfamily property law offers a promising model, for it often weighs intimacy in determining entitlements. In relationships marked by dependence, interdependence, and vulnerability—for example, those between neighbors, co-owners, and decedents and heirs—property rights do not always hold with the same force as they might against strangers. Instead, property law acknowledges the social facts of ongoing, hard-to-exit relationships by blunting the sharp edges of owners’ prerogatives. This approach, which I describe as instantiating a “spectrum of intimacy,” allows property law to recognize and support a broad range of close, complex relationships.

Family law should adopt property law’s spectrum of intimacy to reshape marital property regimes and re-situate unmarried partners in the space between spouses and strangers. Just as property law permits multiple forms of joint ownership, family law should offer a menu of family statuses of which marriage is but one. For partners who do not elect a status, family law should apply a property-flavored equitable approach to distribution. By protecting sharing between both cohabitants and spouses, this approach reflects and honors the wide diversity of modern family relationships.