The Uniform Cohabitants' Economic Remedies Act: Codifying and Strengthening Contract and Equity for Nonmarital Partners Barbara Atwood and Naomi Cahn

• Date: 01 January 2023
• Author: sdfs

1

The Uniform Cohabitants’ Economic

Remedies Act: Codifying and

Strengthening Contract and Equity for

Nonmarital Partners

BARBARA ATWOOD & NAOMI CAHN*

Introduction

In 2021 the Uniform Law Commission (ULC) gave nal approval to

the Uniform Cohabitants’ Economic Remedies Act (UCERA).1 Resting

on both contractual and equitable principles, the Act provides a framework

for resolving economic disputes between nonmarital cohabitants at the end

of their cohabitation, whether the end is brought about by separation or by

death. For the last several decades, case law on cohabitants’ remedies in

1. See UniF. Cohabitants’ ECon. REmEdiEs aCt (UniF. l. Comm’n 2021) [hereinafter

UCERA]. The Committee’s drafts and internal memoranda, discussed infra, are available at

Cohabitants Economic Remedies Act, Archive—Committee, UniF. l. Comm’n, https://www.

uniformlaws.org/viewdocument/committee-archive-119?CommunityKey=c5b72926-53d2-

49f4-907c-a1cba9cc56f5&tab=librarydocuments. The text of the UCERA, without the prefatory

note and comments, is included as Appendix A to this article and is reproduced here with the

permission of the Uniform Law Commission. (Copyright © 2021 by National Conference of

Commissioners on Uniform State Laws.)

* Barbara Atwood is Mary Anne Richey Professor Emerita of Law and Co-Director, Family

and Juvenile Law Certicate Program, University of Arizona James E. Rogers College of Law.

Professor Atwood is a commissioner with the Uniform Law Commission (ULC) and chairs

the Joint Editorial Board for Uniform Family Law, one of the two entities that proposed the

project on cohabitants’ economic rights to the ULC. Naomi Cahn is the Justice Anthony M.

Kennedy Distinguished Professor of Law, Nancy L. Buc ’69 Research Professor in Democracy

and Equity, University of Virginia School of Law. Professor Cahn served as the reporter for

the Economic Rights of Unmarried Cohabitants Act Drafting Committee. We acknowledge the

thoughtful and good-humored leadership of the Drafting Committee Co-Chairs Turney Berry,

Mary Devine, and the late Craig Stowers throughout the drafting process. Drafting Committee

members, ABA advisors, and observers were indispensable participants as well.

2 Family Law Quarterly, Volume 57, Number 1 2024

contract and equity has been “uneven,” to put it mildly.2 When courts apply

market-based doctrines to family-like disputes, they are often reluctant

to reconstruct parties’ actions within an intimate personal relationship

into commercial arrangements.3 In light of the variations in state law

approaches across the United States, the steady increase in the number of

adults living within nonmarital relationships, and the inevitable mobility

of the population, the ULC concluded that a uniform statutory framework

could provide needed clarity, predictability, and stability for this sizable

demographic group.4

While there were half a million cohabiting households in 1970,5 by 2021

that number had grown to more than nine million opposite-sex unmarried

couples, including more than three million households that resided with at

least one biological child of either partner.6 Additionally, as of 2019, there

were more than 400,000 same-sex cohabiting couples.7 Cohabitants make

up more than seven percent of the total adult population.8 Cohabitants are

now older, more racially diverse, and more afuent than in prior decades.9

Same-sex couples, who were historically excluded from marriage,10 are

more likely than different-sex couples to cohabit as unmarried partners. In

2019, about 12% of different-sex households were headed by unmarried

partners while more than 40% of same-sex households were nonmarital.11

Just over six percent of partners in cohabiting households earn over $90,000

2. See Albertina Antognini, Nonmarital Contracts, 73 stan. l. REv. 67, 95–96 (2021).

3. See id. at 100–22.

4. See UCERA Prefatory Note.

5. sUsan bRown, FamiliEs in amERiCa 52–53 (2017).

6. America’s Families and Living Arrangements: 2021, tbl. UC3, Opposite-Sex Unmarried

Couples by Presence of Biological Children Under 18, and Age, Earnings, Education, and Race

and Hispanic Origin of Both Partners: 2021, U.s. CEnsUs bUREaU (Nov. 29, 2021), https://

www.census.gov/data/tables/2021/demo/families/cps-2021.html.

7. Census Bureau Releases Report on Same-Sex Couple Households, U.s. CEnsUs bUREaU

(Feb. 24, 2021), https://www.census.gov/newsroom/press-releases/2021/same-sex-couple-

households.html.

8. Benjamin Gurrentz, Cohabiting Partners Older, More Racially Diverse, More Educated,

Higher Earners, U.s. CEnsUs bUREaU (Sept. 23, 2019), https://www.census.gov/library/

stories/2019/09/unmarried-partners-more-diverse-than-20-years-ago.html.

9. Id.

10. See Obergefell v. Hodges, 576 U.S. 644, 656–63 (2015).

11. See U.s. CEnsUs bUREaU, ACSBR-005, samE-sEx CoUplE hoUsEholds: 2019, at 2

g. 2 (2021), https://www.census.gov/content/dam/Census/library/publications/2021/acs/acsbr-

005.pdf.