When you purchased your home together, you took ownership as joint tenancy, joint tenancy with right of survivorship or tenancy in common. Once you are married, your home will continue to be titled in the way that you originally took ownership. The question might be whether you need to change the way that you hold title.
Once you are married, providing you live in a state that recognizes same sex marriages and allows this type of ownership, you will have the right to own property by tenancy in the entirety. Not all states recognize this type of ownership and not all states that do recognize it will allow you to transfer the home that you already owned into a tenancy in the entirety.
Tenancy in the entirety ownership is based on the common law concept that a married couple is one legal entity. The benefits of this form of ownership include that it grants the right of survivorship to the surviving spouse. When one spouse dies, the other spouse automatically owns the home. It also offers protection against creditors in most states where it is recognized. For example, generally, if only one spouse has a judgment against him or her, the creditor cannot place a lien against the home. An exception in some states occurs when the judgment is against both spouses.
One spouse cannot sell or encumber or bequeath any part of the home without the other spouse’s agreement and signature. Once any legal document is signed by both spouses that affects ownership of the home, the tenancy in the entirety will be dissolved.
Joint tenancy, or joint tenancy with right of survivorship in states that require that language, automatically gives ownership of the home to your surviving spouse or partner when one of you dies. This type of ownership will override any attempt to change or bequeath your interest in the home to any other party. As with tenancy in the entirety, both of you have an undivided equal ownership in the home and cannot refinance or sell your interest without the spouse or partner’s approval and signature.
The important difference between joint tenancy with right of survivorship and tenancy in the entirety is that the home is not protected from judgments by creditors. Regardless of the partner or spouse who has received a judgment against him or her, a lien can be placed against the home.
Tenancy in Common
If you own your home by tenancy in common, you both own equal or unequal shares of the home, depending on how you listed it on the title. You both have the right to sell or bequeath by will your percentage in the home to a third party. If one of you dies intestate, without a will, the deceased spouse’s percentage will be distributed according to the intestate laws of the state that you live in. Once you are married, it may make sense for you to choose another option for holding ownership of your home in order to protect your spouse from losing the home in the event of your death.
Contact an Expert
The laws concerning property ownership vary by state and can be confusing. Once you are married, you may want to consult a gay realtor at GayRealEstate.com that can advise of home ownership options in your state.
If you intend to sell your home or purchase a different home once you are married, an LGBT real estate agent can assist you in locating the perfect home. He or she will also protect your interests and explain your options throughout the process.