Post-Death Palimony

What happens when an unmarried couple ends a long-term relationship? It’s not uncommon for a palimony claim to be filed, with one partner attempting to enforce an agreement that the other partner would provide him or her with long-term financial support.

What happens when that relationship is not ended by choice, but by the death of one of the partners? Increasingly, courts are seeing palimony claims against decedents’ estates. Whether these claims are recognized – and under what circumstances – is determined by state law.

In California, for instance, the factor that determines whether an oral agreement by one partner to support the other partner will be enforced is often whether or not the couple lived together. Where a couple cohabited and one partner passes away, the court will enforce a support agreement. On the other hand, even in the case of a long-term relationship, if the couple did not live together, the court takes a close look at the consideration supporting the agreement. If there’s no consideration above and beyond the existence of the relationship, the support agreement won’t be enforced, because it’s based on “illicit meretricious consideration.”

New Jersey takes a different and more restrictive approach. In 2010, the legislature amended the state’s Statute of Frauds to provide that, while cohabitation is not required, a palimony claim is only enforceable if there is (1) a written agreement to provide support and if (2) the agreement was made with the advice of independent counsel for both parties.

Other states, such as Florida, will not enforce an agreement for one unmarried partner to support another unmarried partner unless that agreement is undergirded by consideration other than the parties’ relationship itself. And in Iowa and Rhode Island, palimony claims against a decedent’s estate are not recognized at all.

Where on this spectrum does your state fall? Do you think states should allow post-death palimony claims, given the increase in non-traditional family structures? Or should these claims be disallowed in the interest of judicial economy?