With the recent upswing in states that have legalized, or have been required to legalize, same-sex marriage, many LGBT couples are finding themselves with legal options that have never been on the table before. For years, people in long-term same-sex relationships were forced to cherry-pick their way through the legal system, assembling a variety of documentation to patch together the rights they wanted to give each other. Now couples are starting all over again at “will you marry me?” to decide the answers to questions like “how will we share property?” “what happens if we divorce?” and “how can I make sure you’re taken care of if something happens to me?”
Home ownership has always been a complicated issue for unmarried couples. There are a number of ways for two people to jointly own a piece of property:
Only one is reserved for married couples alone: tenancy by the entirety. When a married couple owns a home as tenants in the entirety, this means that both spouses have complete ownership of the property. This is in contrast to tenants in common and joint tenants, where the owners are considered to each control a percentage of the property.
Until recently, most gay couples who owned property found that their best choice was joint tenancy with a right of survivorship, which ensured that the surviving partner became the sole owner of the home in the event of one partner’s death. Unfortunately, joint tenancy doesn’t include other benefits married couples receive, such as protection from creditors going after the assets of one partner. Tenancy by the entirety also protects couples from possible gift tax and estate issues, since the property will not actually be considered to change hands.
In late 2014, Florida and other states were specifically instructed to recognize same-sex marriages performed in other states when the state’s ban on issuing and recognizing and performing such marriages was declared unconstitutional in federal district court, and as of January 2015, the remaining stay was lifted and same-sex marriage is considered legal in Florida.
If you chose to marry someone of the same sex in a state other than Florida, or you’re now marrying here, and you own a home or other property together, it’s time to check and make sure you have the most advantageous ownership. For most married couples, that is going to be tenancy by the entirety because it offers the most protections. Florida is a particularly complicated state because it holds that all property of a couple can be owned by tenancy by the entirety, not just real estate.
To make sure that your property, especially your home, is titled to create the outcome you want, it’s important to speak with an expert. The rapid changes in law surrounding same-sex marriage make it difficult to know exactly how to get all of your ducks in a row. By consulting with a legal expert at Van Horn Law Group, you get the peace of mind of knowing that your home and other property hold no paperwork surprises in the future.
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