The Afterlife of the Meretricious Relationship Doctrine: Applying the Doctrine Post Mortem

• Publication year: 2005

SEATTLE UNIVERSITY LAW REVIEWVolume 29, No. 1FALL 2005

The Afterlife of the Meretricious Relationship Doctrine: Applying the Doctrine Post Mortem

John E. Wallace(fn*)

I. Introduction

The meretricious relationship doctrine has received increased attention in recent years largely due to its application to same-sex couples(fn1) and the national debate on same-sex marriage. However, the importance of the doctrine, applicable also to heterosexual couples,(fn2) extends beyond this recent focus. The number of unmarried, committed persons cohabitating has been increasing rapidly. Over eleven million people reported being unmarried but living with a partner in 2000,(fn3) an increase of seventy-two percent since 1990.(fn4) As the number of unmarried persons cohabitating increases, so will the importance of the doctrine.(fn5)

The meretricious relationship doctrine(fn6) is a judicially-created equitable doctrine that allows unmarried committed persons who cohabitate to acquire an interest in property accumulated during the relationship, regardless of which partner holds legal title. (fn7) Upon termination of the relationship, a court will apply this doctrine to divide the property equitably.(fn8)

The current status of the meretricious relationship doctrine in Washington State is fundamentally underdeveloped and leaves many questions unresolved. For example, does the meretricious doctrine create a present inchoate property interest in the non-title-holding partner? Does a non-title-holding meretricious partner have management rights over property jointly-acquired? Does a tort claim against the non-title-holding partner create a third party creditor's interest in the property of the title-holding partner that was jointly-acquired? Does the meretricious doctrine apply post mortem?

This Article, primarily concerned with the last question posed above, will illustrate that the meretricious relationship doctrine should be applied post mortem. Specifically, the meretricious relationship doctrine should apply (1) to the survivor of a meretricious relationship when the relationship terminates by the death of the other partner, (2) to the estates of the meretricious partners when both partners have died simultaneously, and (3) to the estate of a meretricious partner when the relationship terminates by that partner's death. The debate over whether the meretricious relationship doctrine should be applied post mortem centers on whether applying the doctrine post mortem will contravene Washington's intestacy laws,(fn9) which do not provide any inheritance rights for unmarried cohabitants.(fn10)

This Article does not argue that a surviving meretricious partner can inherit under Washington's intestate laws,(fn11) nor does it argue that the Washington State Legislature should amend intestacy laws so that a surviving meretricious partner could inherit directly from a decedent's estate.(fn12) Rather, this Article argues that the meretricious relationship doctrine creates a present inchoate unliquidated property interest in the non-title holding partner which cannot be dissolved at death.(fn13) When the relationship terminates by the death of one of the partners, the inchoate interests of the non-title holding partner vest. Property subject to the inchoate interest, having vested, does not become part of the title-holding decedent's estate. The surviving partner, therefore, does not inherit from the estate, but is rather liquidating his or her property interest created under the meretricious relationship doctrine. Since the surviving partner does not inherit from the decedent's estate, applying the doctrine post mortem does not conflict with intestacy laws. Additionally, to apply the doctrine post mortem advances its purpose(fn14) because the doctrine was created to prevent unjust enrichment.(fn15) To apply the doctrine post mortem prevents unjust enrichment of either the title-holding survivor or the title-holding decedent's estate, as the case may be.(fn16) Further, the doctrine should apply post mortem because it is an equitable doctrine, and the equities involved do not change simply because a relationship terminates by death rather than by separation or marriage.(fn17)

To not apply the doctrine post mortem would cause a non-title-holding survivor to suffer severe inequities while unjustly enriching the estate of the deceased partner. If two people live in a meretricious relationship in which all the assets of the couple are held in one partner's name and that partner dies, the survivor would lose his or her equitable interest in property jointly-acquired, and thus own absolutely nothing. The title-holding decedent's assets, absent a valid will, will be distributed to the decedent's issue, parents, siblings, grandparents, or cousins.(fn18)

Likewise, if a meretricious relationship terminates by the death of the non-title-holding partner and the meretricious doctrine does not apply post mortem, the title-holding survivor will be unjustly enriched at the expense of the decedent's heirs. Similarly, if a meretricious relationship terminates by the simultaneous deaths of the partners, the estate of the title-holding partner will be unjustly enriched to the detriment of the non-title-holding partner's estate if the doctrine does not apply post mortem.

Imagine a man and woman who cohabitated for many years, but all of the couple's assets were in the male partner's name. Imagine further that each partner had a child from a previous relationship. If both partners later die in a car accident, and if the meretricious relationship doctrine does not apply post mortem, the woman's child will not inherit anything, since the woman did not own anything in her name.(fn19) The child of the male partner will inherit all of the assets.(fn20) If, on the other hand, the doctrine applies post mortem, the woman's inchoate interest in the assets will have vested upon the termination of the relationship (i.e., the death of the male partner), and thus, will pass to her child either through a valid will or intestacy laws.(fn21)

In Section II, this Article will examine the evolution of the meretricious relationship doctrine beginning with the abolition of common law marriage, the adoption of the Creasman presumption,(fn22) the creation of the modern meretricious relationship doctrine in In re Marriage of Lindsey,(fn23) and finally to the present state of the doctrine. Section III explores Washington's intestacy laws and argues that those laws do not preclude applying the meretricious relationship doctrine post mortem. In Section IV, this Article addresses the possibility of creating a will to control property disposition at death and demonstrates that the option of drafting a will is not an adequate solution to the problem meretricious relationship equity was meant to address. Finally, Section V argues that the meretricious relationship doctrine should apply post mortem.

II. The Meretricious Relationship Doctrine

A. Evolution of the Doctrine

An understanding of why the meretricious relationship doctrine should be applied post mortem requires an appreciation of the evolution and purposes of the doctrine. The historical inequities that the doctrine was created to address demonstrate that these same inequities continue to exist in the post mortem context.

1. Common Law Marriage

The meretricious doctrine evolved from the Creasman presumption, which developed after the abolition of common law marriage.(fn24) Common law marriage was based on the concept of a civil contract,(fn25) and its rules varied depending on the jurisdiction.(fn26) Some states only required evidence that a couple was capable of contracting and that the couple did in fact agree, either orally or in writing, to be husband and wife.(fn27) Other states required that there be some ceremony or celebration in addition to an implicit contract.(fn28) In a few jurisdictions courts held that a common law marriage existed when there was evidence of cohabitation and additional evidence showing the couple held themselves out to the public as husband and wife.(fn29)

There were various reasons why the courts adopted the doctrine of common law marriage. One reason was the belief that marriage derived from a natural right that every human possessed.(fn30) This belief, coupled with the concept of freedom of contract, commanded that a person's right to marry need not depend on a government license.(fn31) Another reason was that public policy favored marriage over illicit relationships, and therefore, courts should resolve uncertainty about cohabitants' marital status in favor of finding them married.(fn32) A third reason for the doctrine of common law marriage was to protect children. If a court found a cohabiting couple was not married, then any children the couple had were born out of wedlock, and thus illegitimate.(fn33)

Despite the reasons favoring common law marriage, some state legislatures enacted statutes severely limiting common law marriage; others eliminated the institution completely.(fn34) Many of these statutory limitations included a requirement of some form of solemnization by a person authorized to perform such ceremony, a ceremony to take place in front of two witnesses,(fn35) and/or a certificate of marriage.(fn36)

State legislatures and courts provided four main reasons for limiting or abolishing common law marriage...