abstract. In the years since same-sex marriage’s legalization, many states have repealed their civil union and domestic partnership laws, creating a marriage-or-nothing binary for couples in search of relationship recognition. This Note seeks to add to the growing call for legal recognition of partnership pluralism by illustrating why marriage is not the right fit—or even a realistic choice—for all couples. It highlights in particular the life-or-death consequences matrimony can bring for those reliant on government healthcare benefits because of a disability or a need for long-term care. Building upon interview data and a survey of state nonmarital partnership policies, it proposes the creation of a customizable marriage alternative: the registered partnership.

author. Yale Law School, J.D. 2020; University of Cambridge, M.Phil. approved 2017; Rice University, B.A. 2016. I am grateful first and foremost to Anne Alstott, whose endless support, encouragement, and feedback enabled me to write this Note. I am further indebted to Frederik Swennen and Wilfried Rault for taking the time to speak with me about nonmarital partnerships in France and Belgium and to Kaiponanea T. Matsumura and Michael J. Higdon for invaluable guidance on nonmarital partnerships in the United States. Thanks also to the wonderful editors of the Yale Law Journal’s Notes & Comments Committee, especially Abigail Fisch, for their thoughtful comments; to the First- and Second-Year Editors, for their careful review of my Note; and to the Streicker Fund for Student Research, whose generosity made it possible for me to conduct the research that informed this project. Finally, thank you to Charlotte E. Yust and John M. Carroll, my very first editors. All errors are my own.

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 $90,000-$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. Hodges7 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 solidarité (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.