A common law marriage is considered the same as any other marriage, and must be terminated by divorce. So if an insured and their significant other live in a state that recognizes common law marriage and they hold themselves out as married, they are thus considered married. That means significant others or fianc?s are not technically spouses, even under common law. An engaged couple intends to get married in a formal ceremony sometime in the future; they do not consider themselves presently married, but to be married at a later date. The intention to get married in a formal ceremony does not make one a spouse, as that relationship may change.

Let's look at an example. The named insured owned his home, was engaged to be married, and the fianc? had lived with him for four years. During that time, they bought personal property together. The insured broke off the engagement and asked the ex-fianc? to move out. She refused, and the insured had to start eviction proceedings against her. She obtained a restraining order against him and the court ordered him to have no contact with her. He moved out. Two months later, the court ordered the woman to vacate the premises, and the police had to remove her from the dwelling. Upon returning to the home, the insured discovered that his ex-fianc? had knocked holes in the walls, urinated on the carpet and furniture, slashed pictures and clothing, and stolen personal property. The questions presented to us were these: Did the insured have coverage for this loss, and would the company have subrogation rights against the ex?

The ex-fianc? is not a spouse, nor is she a relative. Merriam Webster Online defines “relative” as a person related by blood or affinity, and affinity is defined as a relationship by marriage or kinship. The intention to marry, or the act of living together for an extended period of time, makes one neither married nor kin, so the person is not a relative.

So in our example the ex-fianc? was just a resident, not an insured, and the intentional-acts exclusion doesn't apply. Not only does the insured have coverage for the damages, but the carrier has subrogation rights against the ex-fianc?, and the insured could pursue charges against his ex for theft and vandalism if he so desired. Knowing — and having loved and lived with — a vandal and thief doesn't make that person any less of a vandal or a thief.

But what about separating spouses? Joint property is always a problem. When the relationship dissolves, both parties may be tremendously attached to the plasma TV or the leather sofa. Most property does not obviously belong to one party or the other except for perhaps jewelry and clothing (in most cases, the silk lingerie does not belong to the gentleman). It's one thing if a party can prove that they purchased the property. But if the couple had a joint account and bought items jointly, the property belongs to both and the courts may have to make the ultimate decision.

Let's look at another example. The named insured separated from his spouse and she left the residence. While the insured was away for three weeks, a neighbor was watching the house and pets. The wife talked her way into the house via the neighbor and also broke in on a separate occasion. The wife took all the personal property, appliances, and furniture from the dwelling. After the wife took the property, the insured obtained a judgment granting the dissolution of the marriage and stated that he owned all the property in question. Was the removal of the property a theft or just an ugly disagreement between spouses?

This is one of those situations where the definition is crucial to the solution. The policy doesn't define theft, so back to the dictionary we go. Merriam Webster Online defines “theft” as the felonious taking and removing of personal property with intent to deprive the rightful owner of it. The wife certainly did take all the property intending to deprive the husband of it, although she might be able to make a case that he did not own everything, even though he obtained a judgment that stated so. Being married doesn't mean that your actions toward your spouse can't be nefarious. Since she was no longer a resident at the time of loss, although she was the spouse, she was not an insured. Therefore the intentional-acts exclusion is out. While this is an ugly marital dispute, it is also a theft and should be covered as such.

As you can see, a resident isn't necessarily an insured. A spouse who moves out is legally still the spouse, but she is no longer an insured person. This is only the tip of the iceberg regarding significant others, but it does illustrate that resident spouses, or resident blood relatives, are considered insureds under the policy, and that non-resident spouses, and resident significant others, are just other people, same as you and me.

Christine G. Barlow, CPCU is an assistant editor with FC&S and has an extensive background in insurance underwriting. She may be reached at [email protected].