When same sex couples purchase a home, there are some legal protections that can be put into place to protect their children in the event one or both of them die. The protections that would be best for you will depend on your particular situation. Following are some of the options that are available, depending on the state that you live in.
Types of Ownership
When you purchase a home, you can choose how you want to take ownership. Following are some of the choices that are available.
Joint tenancy with right of survivorship means that you will both own and use the home equally. When one of you dies, your partner will automatically own the home. This may be an option if you are both parenting the children and the surviving partner is a legal guardian and will continue to care for them after the death of the partner.
Tenancy in common allows each of you to will your share of the home to anyone you choose, including your children. In order to protect your children with this option, you can create a will making them the beneficiary upon your death.
Sole ownership where the home is owned by one of you rather than both is an option. The legal guardian of the children could purchase the home in his or her name and will the home to the children. The problem with this option is that the partner whose name is not on the home will not legally own any interest and will have no rights should you breakup or die unless you have created a will that includes them.
Wills
Creating a will allows you to distribute your assets to anyone that you choose. To protect your partner and your children, you can include them as the beneficiary of your home and any other assets that you choose.
If you die without a will, your estate will be distributed according to the laws in the state that you live in. Most states dictate that the estate is distributed between the spouse and the children, or to the children if there is no spouse. In the case of same sex couples who are not married or in a legal relationship, the home would be distributed to the children only if they are their natural children or are adopted. This means that if the children are the natural issue of one of the partners in a same sex relationship and the other partner dies, his estate would not go to the surviving partner or his or her children.
Estate Planning
Most people choose to create a will as well as selecting the home ownership option that works best with their particular situation. There are also other estate planning options available that can be used to protect both your partner and your children in the event of your death including revocable living trusts.
Real estate and estate planning laws vary by state. It would be wise to consult with a real estate attorney who is familiar with LGBT issues when considering the options available to you and your same sex partner.
If you are in the market to purchase a home, you should hire an LGBT real estate agent at GayRealEstate.com to assist you. He or she will help you find the right home and protect your interests throughout the home buying process.
