How To Take Title In Same-Sex Marriages

On June 26, 2015 the United States Supreme Court ruled that same-sex couples have a constitutional right to marry nationwide, in a historic decision that invalidates gay marriage bans. This outcome resolves decades of Supreme Court litigation over marriage, and gay rights generally. Prior to the Supreme Court’s decision title underwriters preferred titling for same-sex marriage to either read as “joint tenants with rights of survivorship” or “tenants in common” as there was still federal uncertainty. Now the Supreme Court’s ruling removes any ambiguity on how to treat same-sex marriage real estate transactions from a titling standpoint. How does this decision potentially impact your clients?

• When both same-sex spouses are going into title, the deed should reflect their marital status (e.g., Mary Smith and Samantha Smith, as wife and wife).
• Title underwriters now recognize any indication of marriage (i.e., husband and wife, husband and husband, wife and wife, etc.) as entireties property.
• Under a tenancy by the entirety, judgments against one same-sex spouse will not attach property they hold as a married couple.
• If only one spouse is on title it will require the other spouse to join in on a mortgage or deed for homestead rights.

Should you have any questions regarding how to take title, which can have important legal and/or tax implications, we urge you to please consult with your local real estate attorney.