For many couples in South Florida—straight or LGBTQ+, younger partners and later-in-life partners alike—the question is not only romantic. It is legal and financial: Should we get married, or stay as domestic partners / unmarried cohabitants?

Florida does not have a statewide domestic partnership or civil union that mirrors marriage. Some cities and counties maintain local registries that can help with limited local benefits (for example, hospital visitation or certain employer benefits within that jurisdiction). Those local registrations are useful, but they are not a substitute for marriage under Florida or federal law.

Florida also does not create new common-law marriages after January 1, 1968. See Fla. Stat. § 741.211. Living together for years does not make you spouses.

This post walks through the main pluses and minuses of each path, tax and veterans' benefits issues that often decide the question, and—if you do marry—why a carefully drafted prenuptial agreement (and sometimes a postnuptial agreement) deserves serious thought. It also compares those marital agreements with a cohabitation agreement.

This is general information for Florida residents, not legal advice for your specific situation. Laws and agency rules change. Talk with counsel about your facts before you act.

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1. What “domestic partnership” actually means in Florida

In everyday conversation, “domestic partners” often simply means two people who share a life and a home without a marriage license. Legally, that status usually falls into one of two buckets:

1. Local registration. Where a city or county offers a domestic partnership registry (Broward, Miami-Dade, Palm Beach, and others have historically offered some form of local recognition), registration may unlock limited local rights—often visitation in covered facilities and, for some county employees, partner benefits. Those rights typically stop at the border of that city or county. They do not create statewide spousal status and do not create federal “spouse” status for Social Security, most VA benefits, immigration, or joint federal tax filing.

2. No registration—just living together. Then your rights depend almost entirely on title (whose name is on the deed, account, or car), beneficiary designations, and private contracts (wills, trusts, powers of attorney, healthcare directives, and cohabitation agreements).

Bottom line: In Florida, marriage is the relationship status that carries automatic statewide and federal consequences. Domestic partnership—whether registered locally or informal—generally does not.

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2. Advantages of marriage

Marriage is a legal status recognized by Florida and by the federal government (including lawful same-sex marriages). For many couples, especially those building or protecting an estate plan, the automatic protections are hard to recreate one document at a time.

Estate and property protections

• Intestate succession. If a spouse dies without a will, Fla. Stat. 732.102 gives the surviving spouse a defined share of the intestate estate (the entire estate in some family configurations; one-half in others). An unmarried partner who is not named in a will or trust generally inherits nothing by status alone—blood relatives may take instead.
• Elective share. A surviving spouse of a Florida-domiciled decedent may elect 30% of the elective estate even if the will leaves the spouse little or nothing. See Fla. Stat. §§ 732.201, 732.2065 (and the elective-estate composition rules in § 732.2035). Unmarried partners have no elective-share right.
• Homestead. Florida's constitutional homestead protections (Fla. Const. Art. X § 4) and related succession rules (including Fla. Stat. § 732.401) are powerful and highly marriage-specific when a spouse survives. Unmarried partners do not receive those spousal homestead devise and descent rights.
• Tenancy by the entirety. Married couples can hold Florida real estate (and certain personal property) as tenants by the entirety, which can provide strong protection against one spouse's individual creditors and can pass outside probate at death. Domestic partners generally cannot use that form of ownership; joint tenancy with right of survivorship is a weaker substitute.

Healthcare, incapacity, and funeral decisions

• If there is no designated healthcare surrogate (or the surrogate is unavailable), Florida's proxy priority under Fla. Stat. § 765.401 puts the spouse near the top of the list—ahead of adult children, parents, and siblings. An unmarried partner is not treated as a spouse and, at best, may qualify later as a “close friend,” and only if higher classes are not reasonably available.
• Even married couples should still execute Florida advance directives, healthcare surrogate designations, HIPAA releases, and durable powers of attorney. Marriage is not a substitute for those documents.
• For funeral and cremation authority, Florida's preference order for a “legally authorized person” begins with the decedent's own written inter vivos directions, then certain military designations, then the surviving spouse, and then other relatives. See Fla. Stat. § 497.005(43). Marriage puts a partner in the spouse class; a designation of bodily remains agent can place a partner even higher by documenting the decedent's own written directions.

Federal and practical benefits

• Social Security. Spousal and survivor benefits generally require a valid marriage (with timing and other SSA rules). Local domestic partnership registration does not create Social Security spouse status.
• Immigration. Marriage is the pathway most couples use for spousal immigration benefits. Domestic partnership does not substitute.
• Employer and retirement benefits. Many plans treat a legal spouse as an automatic or preferred beneficiary (subject to plan and ERISA rules, including qualified joint-and-survivor annuity concepts). Unmarried partners usually must be named expressly—and some plans limit who may be named.

Emotional and social clarity

• For some couples, marriage also clarifies status with hospitals, schools, travel, and extended family. That clarity has practical value even when paperwork is otherwise in order.

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3. Disadvantages and risks of marriage

Marriage is not “free.” It brings obligations and default rules that some couples prefer to avoid—or to customize with a prenup.

• Divorce and equitable distribution. If the marriage ends, Fla. Stat. § 61.075's framework for equitable distribution of marital assets and liabilities applies, unless a valid agreement says otherwise.
• Alimony / spousal support. Marriage can create exposure to support claims under Fla. Stat. § 61.08 (as amended by Florida's 2023 alimony reform). Unmarried partners are outside that Chapter 61 alimony framework unless a private contract creates support.
• Creditor and joint-obligation risk. Shared credit, joint accounts, and marital property can increase financial entanglement—though marriage can also unlock tenancy-by-the-entirety protections that unmarried partners cannot use.
• Means-tested benefits. For some clients (for example, long-term care or public-benefit planning), marital status and resource-counting rules can change eligibility analysis. This is highly fact-specific and should be modeled with counsel—not assumed.
• Estate plans must be updated. Marriage can trigger pretermitted-spouse rules (see Fla. Stat. § 732.301) and other construction effects. A new marriage is a classic reason to redo wills, trusts, beneficiary forms, and deeds before the wedding when possible.
• “Marriage penalty” for some tax situations. Two high earners can sometimes owe more tax filing jointly than they would filing as two singles (discussed below). That is not always the case—many couples receive a marriage bonus—but it belongs on the decision checklist.

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4. Advantages of remaining unmarried / domestic partners

Staying unmarried can be the right choice for some couples—especially when both partners already have strong separate estate plans, children from prior relationships, or a desire to keep finances largely separate.

• Simpler exit. Ending a cohabitation usually does not require a divorce proceeding. Disputes still happen, but the default divorce machinery does not apply.
• Less automatic property sharing. Without marriage, Florida's marital equitable-distribution rules generally do not apply. Title and contract control.
• No automatic Chapter 61 alimony framework. Unless a cohabitation agreement creates contractual support, Florida divorce alimony rules do not apply.
• Local registry benefits (where available). Limited local advantages may be available without taking on full marital status.
• Control through documents. Wills, trusts, beneficiary designations, Lady Bird / enhanced life estate deeds, joint ownership with right of survivorship, and cohabitation agreements can approximate some of what marriage provides—if they are done carefully and kept current.

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5. Disadvantages of remaining unmarried / domestic partners

This is where couples are most often surprised.

• No automatic inheritance. Without a will, trust, or payable-on-death / transfer-on-death designation, a surviving partner may be left with nothing under Florida intestacy.
• No elective share / no spousal homestead. A will that favors children from a prior relationship can leave a long-term partner unprotected in ways a spouse could challenge.
• No tenancy by the entirety. Creditor and succession planning tools available to spouses may be unavailable.
• Weaker defaults in medical and funeral settings. Without signed directives and agent designations, hospitals and funeral homes look to statutory next of kin—often blood relatives ahead of a partner.
• Federal benefit gaps. No Social Security spouse/survivor track; generally no VA surviving-spouse track; no spousal immigration path; often taxable treatment of partner health coverage (below).
• Paperwork burden. Everything that marriage does automatically must be built document by document—and updated when life changes.

A local domestic partnership certificate does not close these gaps.

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6. Tax implications

Federal income tax

• Married filing jointly (or separately). Only spouses may file a joint return. See Internal Revenue Code § 6013. Lawful same-sex marriages are recognized for federal tax purposes. Depending on incomes, deductions, and credits, marriage can produce a marriage bonus (often when incomes are uneven) or a marriage penalty (more common when both partners are high earners). Run the numbers with your CPA before treating “tax savings” as a reason to marry—or not to marry.
• No joint return for unmarried partners. Domestic partners file as single (or head of household only if they independently qualify).

Employer health coverage and “imputed income”

• Employer-paid coverage for a legal spouse is generally excluded from the employee's taxable income. See IRC § 106.
• Employer-paid coverage for a domestic partner is generally treated as taxable imputed income to the employee unless the partner qualifies as the employee's tax dependent under IRC § 152 (a high bar for most partners with their own earnings). That imputed amount can increase federal income tax and payroll taxes.
• For many couples, eliminating imputed income on partner health coverage is one of the clearest annual dollar advantages of marriage.

Estate and gift tax

• Transfers between U.S.-citizen spouses generally qualify for the unlimited marital deduction. See IRC §§ 2056 (estate) and 2523 (gift). Unmarried partners do not get that marital deduction.
• Spouses may also use gift-splitting (IRC § 2513) and, when available, portability of a deceased spouse's unused estate exclusion (IRC § 2010(c)). Those tools are marriage-based.
• Large lifetime gifts or bequests to an unmarried partner can consume exemption or create planning issues that spouses often avoid.

Florida tax notes

• Florida currently has no state income tax, so federal filing-status differences dominate the income-tax analysis for Florida residents.
• Florida also currently has no state estate tax, but federal transfer-tax rules still matter for many clients.
• Homestead property-tax exemption and Save Our Homes assessment-cap rules (Fla. Const. Art. VII; Ch. 196) are fact-specific. Marriage can affect who qualifies as a family unit and how title should be held. Coordinate deed work with the property appraiser's rules and your estate plan—do not assume a wedding automatically optimizes property taxes.

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7. Veterans Affairs (VA) and related military benefits

If either partner is a veteran—or may become one—marriage is often outcome-determinative.

As a general rule, VA spousal and surviving-spouse benefits require a valid marriage recognized for VA purposes. Domestic partnership registration and long-term cohabitation in Florida, standing alone, usually do not create VA spouse status. Benefits commonly tied to spouse / surviving-spouse status include (depending on the program and eligibility rules):

• Additional disability compensation for a dependent spouse when the veteran's rating qualifies (see 38 U.S.C. § 1115)
• Dependency and Indemnity Compensation (DIC) for many surviving spouses (see 38 U.S.C. § 1310 framework and current VA rules)
• CHAMPVA health coverage in qualifying cases
• Certain education benefits for spouses/survivors
• Surviving-spouse pathways related to VA pension and, in some cases, burial-related benefits
• Coordination with military survivor benefits such as SBP / TRICARE pathways that likewise look to legal spouse status

Florida note: Because Florida bars new common-law marriages after January 1, 1968 (§ 741.211), couples who live here should not assume that “we lived together for years creates VA spouse status. Narrow VA “deemed valid marriage” concepts exist in federal law for some fact patterns, but they are technical, evidence-heavy, and not a planning substitute for a real marriage license when benefits matter.

Planning takeaway: If DIC, CHAMPVA, dependent compensation, or survivor military benefits are part of your household's safety net, put marriage on the table early—and pair it with updated beneficiary forms and estate documents.

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8. If you decide to marry: strongly consider a prenuptial agreement

A prenuptial (premarital) agreement is not a prediction of divorce. For many of my clients—especially blended families, business owners, partners with unequal assets, or couples marrying later in life—it is a clarity tool. It lets you choose your own financial rules instead of inheriting every default of Chapter 61 and the Probate Code.

What Florida law allows

Florida's Uniform Premarital Agreement Act, Fla. Stat. § 61.079, governs premarital agreements signed on or after October 1, 2007. Among other points:

• The agreement must be in writing and signed by both parties.
• It becomes effective upon marriage.
• Parties may contract about property rights, management of property, disposition on divorce or death, spousal support, life-insurance death benefits, choice of law, and related matters—subject to public policy limits.
• A prenup may not adversely affect a child's right to support.
• Enforcement can fail if a party proves lack of voluntariness; fraud, duress, coercion, or overreaching; or unconscionability plus inadequate financial disclosure (with related statutory elements). Fair financial disclosure—and often independent counsel for each party—are best practices even when the statute's minimums look thin on paper.

Spousal probate rights need special attention

Waiving elective share, homestead, intestate share, exempt property, family allowance, and related spousal probate rights implicates Fla. Stat. § 732.702, which has its own formalities (including two subscribing witnesses for many Florida-resident waivers). Importantly, § 61.079 does not replace § 732.702. A prenup that works for divorce property issues can still fail to waive elective share or homestead at death if the probate-waiver formalities are missing.

Common prenup goals in estate-planning households

• Preserve premarital assets, businesses, and inheritances for children from a prior relationship
• Define what will be marital vs. nonmarital property
• Address alimony exposure with open eyes
• Coordinate life insurance and retirement beneficiary expectations
• Reduce conflict if the marriage ends—or when the first spouse dies

Recommendation: If you marry with meaningful separate property, children from prior relationships, a business, or a partner who is a veteran with benefit-sensitive plans, treat a prenup as part of the wedding checklist—not an insult. Raise it early, disclose finances fully, and give both partners time and independent counsel.

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9. Postnuptial agreements

Already married? A postnuptial (postmarital) agreement can still reallocate property rights and support expectations.

• Postnups are not governed by § 61.079 the same way prenups are; Florida courts analyze them under contract and family-law principles, with fairness and disclosure concerns developed in case law.
• After marriage, fair disclosure is especially important—and § 732.702 expressly requires fair disclosure for post-marriage waivers of spousal probate rights.
• Postnups can be an excellent tool after a business sale, inheritance, remarriage reconciliation, or when an estate plan needs to be aligned mid-marriage.

A postnup is often harder emotionally than a prenup—and sometimes scrutinized more closely—so process and disclosure matter.

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10. Cohabitation agreements compared with prenups and postnups

Issue	Prenuptial agreement	Postnuptial agreement	Cohabitation agreement
When signed	Before marriage	During marriage	While unmarried (before or during cohabitation)
Core purpose	Customize marital property / support / death terms	Same, after marriage	Define property, bills, support, and breakup terms without marrying
Creates legal spouse status?	No—marriage does that	No—marriage already exists	No
Unlocks Social Security / most VA spouse benefits?	Only because you marry	Already married	No
Florida legal backbone	§ 61.079 (+ § 732.702 for probate waivers)	Case law / contract principles (+ § 732.702)	General contract law
Typical use	Engaged couples with assets or blended families	Married couples resetting expectations	Unmarried partners who want written financial rules

What a cohabitation agreement can do well

• Identify separate vs. shared property
• Allocate rent, mortgage, improvements, and household expenses
• Set buyout terms if one partner moves out
• Create contractual support or property division if the relationship ends (Florida has no automatic “palimony” statute)
• Coordinate with deeds and beneficiary designations

What a cohabitation agreement cannot do

• Create Florida spousal status
• Create federal spouse status for tax filing, Social Security, or most VA survivor benefits
• Create elective share, spousal intestacy, or Art. X § 4 spousal homestead rights
• Replace a will, trust, healthcare surrogate designation under Chapter 765, or remains-agent designation under § 497.005(43)
• Create tenancy by the entirety

Many unmarried couples use both a cohabitation agreement and a full estate plan. Married couples who want similar clarity use a prenup or postnup plus the estate plan. The contract and the status solve different problems.

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11. Myths to leave behind

1. “We've lived together for years—Florida treats us as married.” No. See § 741.211.

2. “Our county domestic partnership is almost like marriage.” No. Local only; no statewide or federal spousal estate, tax, Social Security, immigration, or VA status.

3. “If there's no will, my partner inherits.” No. Intestacy is spouse- and kin-based.

4. “A cohabitation agreement can give us Social Security, elective share, or VA DIC.” No. Private contracts cannot create those statuses.

5. “Hospitals and funeral homes must treat my partner like a spouse because we're registered.” Incomplete. Without a healthcare surrogate and written funeral authorization, blood relatives often outrank a partner.

6. “Domestic-partner health insurance is taxed the same as spousal coverage.” Usually no—partner coverage often creates imputed income unless IRC § 152 dependent tests are met.

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12. A practical decision framework

Ask yourselves:

1. Do we need federal spouse benefits (Social Security, immigration, VA/military survivor pathways, tax-free spousal health coverage)?

2. Do we need Florida's automatic estate protections (elective share, homestead, intestacy, tenancy by the entirety)?

3. Are there children from prior relationships, a business, or unequal assets that call for a prenup if we marry?

4. If we stay unmarried, are we willing to maintain a complete set of wills/trusts, deeds, beneficiary forms, directives, and a cohabitation agreement—and update them?

5. Have we run the tax numbers with a CPA (joint filing vs. single; imputed income on partner health coverage; gift/estate marital deduction; gift-splitting/portability)?

6. Is either of us a veteran, or likely to need VA dependency or survivor benefits?

If the answer to (1), (2), or (6) is “yes,” marriage is often the cleaner legal foundation—frequently paired with a prenup. If the answer to (3) is “yes,” do not marry on romance alone without the agreement. If you choose not to marry, treat document planning as mandatory, not optional.

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13. How our office can help

At the Law Office of Shawn C. Newman, P.A., we help individuals and couples in Broward, Palm Beach, and Miami-Dade Counties think through these choices in plain English and then put the right documents in place—wills, trusts, powers of attorney, advance directives, cohabitation and domestic partnership agreements, and coordination with prenuptial or postnuptial planning.

Complimentary initial consultations are available in person or by Zoom.

Law Office of Shawn C. Newman, P.A.

710 Northeast 26th Street

Wilton Manors, Florida 33305

(954) 563-9160

www.shawnnewman.com

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