When Marriage Is Too Much: Reviving the Registered Partnership in a Diverse Society.

• Author: Carroll, Mary Charlotte Y.

NOTE CONTENTS

INTRODUCTION 480 I. WHY MARRIAGE IS TOO MUCH 483 A. Changing Views of Partnership 484 B. When Marriage Meets Medicaid 488 1. A (Very) Brief Tour of Medicaid Eligibility and the Asset Spend-Down 488 2. Marrying with a Disability: The "Marriage Penalty" 492 3. Medicaid Is a Gender Issue. 494 II. THE DECLINE OF NONMARITAL FORMS OF PARTNERSHIP IN THE UNITED STATES 498 A. The Rise and Fall of Nonmarital Forms of Partnership 499 B. The Current Landscape 503 III. MARRIAGE ALTERNATIVES 507 A. Two Case Studies of Nonmarital Forms of Partnership 507 1. The French PACS 508 2. Belgian Legal Cohabitation 511 B. Nonmarital Partnerships in Latin America 514 IV. THE REGISTERED PARTNERSHIP MODEL 517 A. Creating a Registered Partnership Alternative 518 B. Evaluating the Registered Partnership Model 521 1. The Registered Partnership and the Family 522 2. Would Partners--and States--Embrace a New Relationship Status? 525 3. Administrative Costs 528 4. Why Not Healthcare Reform Instead? 529 5. The Future of Nonmarital Statuses 531 CONCLUSION 534 APPENDIX 535 INTRODUCTION

Harold and Burnalette Perlstein were married for fifty years before they got a divorce. (1) Harold, born in 1938, had developed Parkinson's disease--a progressive illness that causes difficulty walking and speaking, as well as behavioral changes--and needed full-time care in a nursing facility. (2) But the couple could not afford steep nursing-home fees. Though Harold and Burnalette had several hundred thousand dollars of property and other assets between them, Burnalette was already almost seventy, and the money would not stretch far--a room in a nursing home runs about $00,000-$100,000 a year. (3) The Perlsteins faced a bleak choice: either they could spend down all of their assets until Harold qualified for long-term care coverage under Medicaid, impoverishing Burnalette in the process, or they could divorce, enabling Burnalette to keep their savings and Harold to fall below the resource maximum for Medicaid eligibility. In early 2015, they chose the latter. (4) The couple transferred most of their assets to Burnalette, and Harold got his Medicaid. (5)

The Perlsteins' story is not unique. In the United States, loving marriages in which one partner develops an illness or disability requiring long-term care too often end in a "Medicaid divorce," a severing of legal ties to preserve one spouse's livelihood in the face of her partner's decline. (6) Perversely, the U.S. healthcare system punishes those who have done everything right. Couples who save responsibly must choose between divorce or depleting their savings on one partner's care. Though the decades-long battle for marriage equality, resolved in the Supreme Court's 2015 Obergefell v. Hodges (7) decision, highlighted the psychological, material, and civic importance of access to marriage, the freedom to marry--and stay married--is not a practical reality for many in the United States. Indeed, the law continues to burden and discourage marriage by older Americans and those with disabilities.

Even when partners are in a serious, long-term relationship, the law may render marriage an unattractive option for three reasons: its default regime of inheritance rights and asset sharing, its impact on qualification for disability and long-term care entitlements, and its inability to evolve with changing cultural norms about relationship permanence and gender roles. Marriage's automatic bundle of rights and responsibilities may not accord with each partner's intentions regarding her assets and how those assets should be passed to the next generation. More critically, if either partner is a Medicaid recipient, marriage can jeopardize eligibility or require the well spouse to impoverish herself, (8) a burden that often falls on married women. (9) As the Perlsteins' experience demonstrates, the Medicaid problem is no small matter: long-term care costs in the six figures are beyond the reach of most people. (10) Couples of any age can face a similar Hobson's choice when one or both partners have a disability and receive government healthcare benefits. (11) The result is that the law may require someone to choose between exercising the freedom to be married to the person she loves and the ability to access the care she needs. (12) Even in less dire circumstances, marriage may not be the right fit for every couple. Yet the United States forces partners into a marriage-or-nothing binary; absent marital union, a couple will have difficulty claiming rights and protections stemming from their relationship. (13)

In the years since same-sex marriage gained widespread recognition, many states have repealed laws offering nonmarital forms of partnership, (14) and those few states that still have civil unions or other statuses tend to offer partners rights and benefits nearly coextensive with marriage--making them alternatives in name only. (15) This Note proposes the creation of a robust third option between marriage and singlehood: the registered partnership. Taking inspiration from the French pacte civil de solidarite (PACS) and Belgian legal cohabitation, I outline a new form of partnership that would allow parties to choose for themselves which obligations they wish to undertake via a ready-made template or their own contract. By letting partners decide whether they want to share assets or inherit from one another, the registered partnership model would give people the autonomy and flexibility to fashion a form of partnership that works for them.

Part I explains the numerous ways that marriage is not a perfect fit for every U.S. couple. I first discuss how views of partnership, including ideas about sharing assets, automatic inheritance, and staying with one partner until death, have changed in ways that conflict with the marriage model. I then explore the financial harms that some couples experience by virtue of being married, including losing government healthcare benefits. Part II offers an original empirical analysis of the options available to U.S. couples who wish to formalize their relationships, revealing a landscape that has become increasingly barren since same-sex marriage gained traction in the 2010s. To understand how we might be able to move away from this marriage-or-nothing framework, Part III evaluates marriage alternatives that have found success in other countries. I first present case studies of the French PACS and Belgian legal cohabitation, using interview data from both countries to lay out how each form of partnership works in practice and what kinds of couples use it. I then turn to the deeply rooted tradition of cohabitation in Latin America, discussing factors that have contributed to its increasing popularity. Finally, Part IV suggests how a registered partnership model might work in the United States, arguing that the time is ripe to create a robust new status with rights and obligations distinct from those of marriage. I conclude by summarizing the benefits a third option might offer couples, characterizing the registered partnership as a model built on choice and customizability.

1. WHY MARRIAGE IS TOO MUCH

   Today, marriage is less popular than ever. (16) About half of adults in the United States are married, compared with 72% in i960, and those that do marry choose to wed later in life than did their 1960s counterparts. (17) The share of U.S. adults who have never married is also at a "historic high," (18) while the number of unmarried cohabitants has nearly tripled over the past two decades. (19) And cohabitation is no longer the province of the young; the U.S. Census Bureau announced in 2019 that "unmarried partners are now older, more racially diverse, more educated and more likely to earn higher wages" than in years past. (20) Many factors may account for U.S. couples' increased ambivalence toward marriage, from shifting cultural norms to financial pressures and beyond, but it's clear that a growing number of couples do not desire the thick bundle of rights and obligations it brings.

   1. Changing Views of Partnership

      To begin, the notion of marriage conies with a symbolic meaning that many couples do not desire. As Elizabeth Scott has written, "modern marriage is embedded in its historic tradition as a religious institution," and "[e]ven today, marriage has not fully emerged as a secular legal status." (21) At a time when religion in the United States "has lost its halo effect," with almost a quarter of the population reporting no religious affiliation, (22) the religious overtones that accompany marriage may be an uncomfortable fit for an increasing number of couples. Further, marriage remains historically associated with the concept of coverture--the idea that marital union makes a husband and wife a single entity in which "the very being or legal existence of the woman is suspended." (23) Even today, marriage can perpetuate a gender hierarchy that disempowers women. (24) Nancy F. Cott explains that in "[t]urning men and women into husbands and wives, marriage has designated the way both sexes act in the world and the reciprocal relation between them ... probably more emphatically than any other institution or social force." (25)

      In addition, some modern couples acknowledge that their relationship may not last forever (though they may nonetheless desire some level of recognition from the state). This attitude is in line with what Anthony Giddens identified in the early 1990s as a growing trend in Western society: the "confluent love" model of partnership, premised on the idea of a "pure" relationship "entered into for its own sake and maintained only as long as both partners get enough satisfaction from it to stick around." (26) Among some partners, there may be a sense that marriage is simply too much. Marriage comes with an automatic set of rights and responsibilities that not all people seek. The bundle of built-in obligations, from inheritance rights to...