The legal obligations between two people in a romantic relationship often depend on whether they were married. State laws generally require each spouse to support the other during their marriage — and sometimes after the marriage ends. Couples who choose not to marry can usually avoid that obligation, at least if they make clear that they have not made any unwritten financial promises to their partner.

When partners choose not to marry, however, they might be frustrated by their inability to help an aging partner. A recent story in the New York Times illustrates that point by focusing on an unmarried couple, both in their 90s, who have lived together for twenty years. Both are widowers. They each maintain a separate residence, but usually stay together in the woman’s home.

When the woman’s memory began to decline, her partner wanted them to move into a continuing care retirement community. He reasoned that he would not be allowed to live with his partner if she moved directly into a memory care facility. In a CCRC, they could live together in an independent living unit, transition to an assisted-living facility, and only consider living separately after it was no longer feasible for his partner to reside outside of a nursing or memory care facility.

The woman’s daughter didn’t like her mother’s partner and opposed his housing plan. The woman had given her daughter, rather than her partner, a power of attorney. Since the man was not married to the woman, he had no legal authority to make the kinds of decisions for her that a spouse might make on a partner’s behalf.

A Growing Issue

Jenna Wells, a Cornell University psychologist who is related to the woman, describes her partner as helpful and supportive. Unfortunately for him, good intentions do not override legal documents.

Dr. Wells expects to see a growing number of older couples wrestling with similar problems. “As we see this shift, with less of a focus on marriage in older people, this is going to come up a lot,” Dr. Wells told the Times.

More than a million Americans between the ages of 65 and 74 are cohabiting with an unmarried partner. The percentage of people in that age range who live with partners in an unmarried relationship has more than doubled in the last twenty years. Another 400,000 couples who are over the age of 75 live together outside of marriage.

Experts told the Times that a number of factors account for changing attitudes about marriage, including a growing consensus of opinion that a loving sexual relationship outside of marriage is not immoral. Most Americans no longer judge others for choosing to live together as unmarried romantic partners. Concepts of morality that condemn cohabitation as “living in sin” have lost their hold on aging Baby Boomers.

The growing prevalence of senior divorces has also contributed to attitudes about senior marriage. Having been married once or twice in their lives and with no desire to have more children, many older adults don’t want the hassle of legal ties complicating a decision to end a relationship — a decision that seniors typically view themselves as capable of making without submitting to the complications of divorce law.

Financial reality has also motivated older Americans to view cohabitation in a positive light. Remarrying after a spouse dies might cause a loss of continuing eligibility for the deceased spouse’s pension benefit. Marriage might also make one spouse responsible for the other’s newly incurred debts. And spouses who value their new financial independence might be unwilling to entangle their financial affairs again.

Caregiving Responsibilities

Just as past financial experiences might affect a willingness to remarry, so might past caregiving experiences. Susan Brown, a sociologist at Ohio’s Bowling Green State University, told the Times that women who took care of their husbands during a terminal illness “bring a been there, done that, attitude to remarriage.”

Older couples are just as capable as young couples of enjoying love, romance, and passion. They have also gained sufficient life experience to understand that some relationships need to be constructed with boundaries. Living together as a romantic couple doesn’t necessarily imply a promise to act as a caregiver for a partner who requires constant nursing or memory care.

Planning for the Future

While all aging couples should discuss future healthcare options while both partners are still reasonably healthy, that discussion is particularly important for unmarried couples who might want to live together. One partner might or might not be willing to make financial and healthcare decisions for a partner who is no longer capable of making them. One partner might or might not be willing to act as a full- or part-time caregiver or to fund caregiving services for the other partner. One partner may or may not be willing to act as executor of the other’s will. Those are issues that should be discussed before older adults agree to move in together.

The Times article reports that unmarried cohabiting couples are less likely than married couples to prepare advance healthcare directives and estate plans. Both are important means of assuring that a senior’s wishes are carried out if the senior loses the ability to make or communicate end-of-life decisions. They should be an important component of the discussion that older couples have when they plan their future together.